UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A    TREATISE 


ON  THE  LAW  OF 


EMPLOYERS'  LIABILITY  ACTS 


BY 


CONRAD  RENO,  LL.  B. 

AUTHOR   OF   A   TREATISE  ON    THE    LAW  OF   NON-RESIDENTS   AND   FOREIGN 

CORPORATIONS,  ETC.  ;    MEMBER  OF  THE  BOSTON  BAR,  AND  INSTRUCTOR 

IN  THE  SCHOOL  OF   LAW  OF  BOSTON  UNIVERSITY 


BOSTON  AND  NEW  YORK 
HOUGHTON,  MIFFLIN  AND  COMPANY 
Cjje  Ktoerstoe  Press, 

1896 


Copyright,  1896, 
BY  CONRAD  RENO. 


The  Riverside  Press,  Cambridge,  Mass.,  Tf.  8.  A. 
Electrotyped  and  Printed  by  H.  O.  Houghton  &  Co. 


PREFACE. 


THE  present  stage  of  development  and  practical  im- 
portance of  Employers'  Liability  Acts  seem  to  warrant 
the  publication  of  an  American  work  upon  the  subject. 
The  English  Employers'  Liability  Act  of  1880  has 
been  followed  in  the  United  States  by  the  Alabama 
Act  of  1885,  the  Massachusetts  Act  of  1887,  and  the 
Colorado  and  Indiana  Acts,  both  passed  in  1893. 
Many  decisions  of  the  highest  courts  in  these  jurisdic- 
tions have  been  rendered  in  actions  brought  under 
these  statutes,  and  many  questions  are  now  settled. 
Though  differing  somewhat  in  details,  these  statutes 
agree  in  their  main  features,  and  all  have  the  effect  of 
extending  the  common-law  liability  of  employers  for 
personal  injuries  suffered  by  their  employees.  In  some 
directions,  the  enlargement  of  the  employee's  rights 
has  been  considerable.  The  most  important  provisions 
are  those  which  give  the  employee  a  right  of  action 
against  his  employer  for  injuries  caused  by  reason  of 
the  negligence  of  the  employer's  superintendent,  and, 
in  the  case  of  railroad  employees,  for  injuries  caused 
by  reason  of  the  negligence  of  any  person  having  the 
charge  or  control  of  certain  railroad  instrumentalities. 
The  rights  and  liabilities  peculiar  to  railroad  employees 


66VG82 


IV  PREFACE. 

and  employers  are  considered  in   chapter  v.,  and  the 
negligence  of  superintendents  in  chapter  iv. 

The  author  has  endeavored  to  treat  the  important 
questions  with  fulness  and  thoroughness,  in  many 
instances  stating  the  facts  of  adjudications  and  the  rea- 
soning of  the  courts  in  their  own  language.  Less  im- 
portant matters  have  been  treated  with  less  particular- 
ity. It  is  believed  that  the  common-law  principles  of 
employers'  liability  have  been  stated  with  sufficient  ful- 
ness to  render  clear  the  advance  made  by  the  Employ- 
ers' Liability  Acts.  More  attention  has  been  given  to 
the  common  law  of  the  States  having  such  statutes 
than  to  that  of  other  States. 

Much  care  has  been  given  to  the  discussion  of  the 
question  relating  to  what  facts  will  or  will  not  justify 
the  presiding  justice  in  withdrawing  the  case  from  the 
jury,  and  chapters  xii.,  xiii.,  and  xiv.  are  devoted  to  this 
question. 

The  doctrines  of  assumption  of  risk  and  volenti  non 
fit  wjtiria  have  been  fully  considered. 

The  Appendix  contains  the  text  of  the  various  Em- 
ployers' Liability  Acts,  with  amendments  to  January  1, 
1896.  The  Table  of  Cases  Cited  contains  upwards  of 
nine  hundred  cases,  many  of  which  are  cited  more  than 
once  in  support  of  different  propositions.  The  Index 
has  been  carefully  prepared. 

CONRAD  RENO. 

Equitable  Building,  150  Devonshire  Street, 
BOSTON,  March  20,  1896. 


TABLE   OF  CONTENTS. 


CHAPTER  I. 

GENERAL,   PRINCIPLES. 

SECTION  PAGE 

1.  Employers'  Liability  Acts  liberally  construed  in  favor  of  em- 

ployees    ...........  1 

2.  Statutory  right  not  identical  with  common-law  right  of  action  3 

3.  Prior  English  construction  followed      ......  4 

4.  No  retrospective  operation        .......  5 

5.  To  what  classes  of   employees  the  Employers'  Liability  Acts 

apply 6 

6.  Contracting  out  of  the  statute,  or  waiving  its  benefit  ...  7 

7.  Same.     Prohibition  by  statute  .         .         .  .         .         .  9 

8.  Common-law  rules  as  to  exempting  employer  from  liability  for 

negligence     ..........         11 

9.  Agreement  by  parent  of  minor  employee  not  to  sue  employer     .     13 

10.  "  Relief  fund  "  agreement  not  to  sue  employer          ...         13 

11.  Relation  of  employer  and  employee  must  exist    .         .         .         .14 

12.  Same.     Other  illustrations        .......         15 

13.  "  As  if  the  employee  had  not  been  in  the  service  of  the  em- 

ployer"        . .         18 

14.  Actions  against  municipal  corporations         .         .         .         .         .20 

15.  Judgment  and  settlement  by  consent  of  next  friend  of  minor 

employee  ..........  21 

16.  Suits  in  federal  courts  under  state  statute         ....  22 

17.  Same.     Adopt  construction  given  to  state  statute  by  state  court  24 

18.  Same.     Enforcing  statutes  of  other  States        ....  25 

19.  Federal  courts  are  not  bound  by  state  decisions  as  to  who  are 

fellow-servants      ......... 

20.  Suit  in  admiralty  court  for  maritime  tort     ..... 

CHAPTER  H. 

DEFECTS   IN  THE   CONDITION  OF  THE  WAYS,  WORKS,    ETC. 

21.  Statutory  provisions  and  preliminary  remarks      .         .         .         .29 

22.  General  effect  of  this  clause  in  Massachusetts          ...         30 


VI  TABLE    OF   CONTENTS. 

23.  General  effect  of  this  clause  in  Alabama 32 

24.  Actual  or  presumptive  knowledge  of  defect  by  defendant  or  his 

proper  officers  ..........  33 

25.  Employee's  knowledge  of  defect  or  negligence         ...  35 

26.  Defect  must  be  proximate  cause  of  injury 37 

27.  Accidental  and  temporary  obstruction 38 

28.  Proper  appliances  within  reach 40 

29.  Latent  defect 42 

30.  Hidden  danger  in  the  ways,  works,  or  machinery          .         .         .43 

31.  Injury  not  caused  by  defect  alleged           .....  44 

32.  Machinery  need  not  be  the  safest  or  best  known  in  use        .         .  45 

33.  Absence  of  guards,  cleats,  rails,  etc.         .....  45 

34.  Same 47 

35.  Miscellaneous  cases 48 


CHAPTER  III. 

"WAYS,   WORKS,   MACHINERY,   OR   PLANT." 

36.  Statutory  provisions     .........     50 

37.  Definitions  and  illustrations      .......         51 

38.  «  Machinery  "  defined 52 

39.  Temporary  structures       ........         53 

40.  Works  in  process  of  construction  or  destruction  .         .  .54 

41.  Movable  staging  owned  by  defendant       .....         56 

42.  Movable  stairs  owned  by  third  person  .         .         .         .         .56 

43.  Foreign  car  used  by  defendant  for  its  own  benefit    ...         57 

44.  Same 59 

45.  Foreign  car  not  used  by  defendant,  but  merely  forwarded  empty     60 

46.  Railroad  track  of  connecting  road         .         .         .         .         .         .62 

47.  Railroad  track  of  shipper 63 

CHAPTER  IV. 

NEGLIGENCE   OF  SUPERINTENDENT. 

48.  Statutory  provisions     .........     65 

49.  Enlargement  of  employee's  common-law  rights        ...         67 

50.  Common  law  respecting  superintendent's  negligence  compared 

with  Employers'  Liability  Act      .         .  '  .         .    .     .  68 

51.  Same 70 

52.  Who  are  "  superintendents  "  within  the  meaning  of  the  statute  73 

53.  Who  are  not  "  superintendents  "  within  the  meaning  of  the  stat- 

ute       .        .        .        .         .        .        .         .         .         .        .         74 

54.  Same.     "  Sole  or  principal "  duty         .         .        .        .*  .76 


TABLE   OF   CONTENTS.  Vll 

55.  Same.     Charge  or  control  does  not  render  one  a  superintendent       78 

56.  Negligence  of  employer  and  superintendent     ....         80 

57.  What  is  negligence  of  superintendent.     Alabama  cases       .         .     81 

58.  Same.     Massachusetts  cases     .......        83 

.59.  Negligence  must  be  an  act  of  superintendence     .         .         .         .85 

60.  Superintendent  doing  work  of  common  laborer         ...         88 

61.  Temporary  absence  of  superintendent          .        .         .         .         .90 

62.  Instructions  upon  matters  of  detail  ......         90 

63.  Conflicting  evidence  as  to  whether  person  causing  injury  is  a    , 

superintendent  :  jury  to  decide     ......  91 

64.  That  superintendent  is  a  careful  workman  is  no  defence      .         .  92 

65.  Common  employment  under  different  employers  93 

66.  General  and  special  servants         .......  93 

67.  Injury  to  superior  officer  or  other  employee  not  under  the  super- 

intendence of  the  negligent  superintendent      .         .         .         .95 

68.  Employee  liable  to  co-employee  for  negligence        ...         96 


CHAPTER  V. 

LIABILITY   PECULIAR  TO   RAILROAD   EMPLOYERS. 

69.  Scope  of  chapter,  and  statutory  provisions 97 

70.  "  Train "  defined 98 

71.  "  Locomotive  engine  ".........  100 

72.  "Car" 101 

73.  "  Upon  a  railroad "      .         .         . 101 

74.  Statutory   defects    in   freight-cars,    grab-irons,  and   draw-bars. 

Blocking  of  frogs,  switches,  and  guard-rails         .         .         .  101 

75.  "  Charge  or  control  "  for  temporary  purpose        ....  103 

76.  "  Charge  or  control "  of  train 105 

77.  Brakeman  or  other  employee  may  have  charge  or  control  of  a 

train 108 

78.  Different  views  at  common  law  concerning  person  in  charge  or 

control  of  train    .........       109 

79.  Who  may  have  the  charge  or  control  of  locomotive  engine  .         .111 

80.  Who  may  have  the  charge  or  control  of  a  car  .         .         .         .113 

81.  Negligence  of  person  in  charge  or  control  of  signal,  switch,  en- 

gine, car,  etc 114 

82.  Railroads  operated  by  receivers 115 

83.  Same.     Prior  leave  of  appointing  court  to  sue          .         .         .116 

84.  Constitutionality.     Discrimination  against  railroads    .        .        .  116 

85.  Same  121 


Vlll  TABLE    OF   CONTENTS. 

CHAPTER  VI. 

MISCELLANEOUS   POINTS. 

86.  I.  Negligence  of  person  entrusted  with  duty  of  seeing  that  ways, 

etc.,  are  in  proper  condition      .......  123 

87.  Same 125 

88.  Same.     Inspectors  of  foreign  cars        ......  127 

89.  Same.     Road-master  and  section  foreman         ....  129 

90.  Same.     Injury  to  such  person  himself          .....  129 

91.  II.  Negligence  of  person  to  whose  orders  plaintiff  was  bound  to 

conform.     Alabama  cases 130 

92.  Same.     English  cases 131 

93.  III.  Injury  to  employee  of  independent  contractor      .         .         .  134 

94.  Same.     Contractor  may  act  in  another  capacity       .         .         .  136 

CHAPTER  VII. 

ATTRIBUTES   PECULIAR   TO   INJURIES   RESULTING  IN   DEATH. 

95.  Scope  of  chapter         .........  137 

96.  No  action  for  death  at  common  law.     Early  statutes      .         .       138 

97.  Survival  of  action  when  the  death  is  not  instantaneous,  or  is 

preceded  by  conscious  suffering  ......       140 

98.  Release  by  widow  or  next  of  kin       ......  142 

99.  Survival  of  action  when  death  is  instantaneous  or  without  con- 

scious suffering       .         .         .         .         .         .         .         .         .  143 

100.  Where  employee  who  has  consciously  suffered  leaves  no  widow 

or  dependent  next  of  kin        .......  144 

101.  What  constitutes  instantaneous  death,  or  death  without  con- 

scious suffering       .........  146 

102.  Concurring  causes  of  death,  for  one  of  which  defendant  is  not 

culpable         ..........  147 

103.  Claim  for  damages  as  ground  for  administration    .         .         .       148 

104.  Same 150 

105.  Who  may  sue  when  employee  dies  before  action  is  brought    .       153 

106.  Same 155 

107.  Former  suit  or  judgment  by  wrong  person  no  bar  to  suit  by 

right  person   .         ......         .  .  156 

108.  Domestic  administrator's  right  to  sue   for  injury  received  in 

another  State  .........  157 

109.  Foreign  administrator's  right  to  sue        ...         .         .         .       158 

110.  Same.     Author's  view         ........  160 

111.  Who  are  "  dependent  "  upon  the  employee     ....       162 

112.  Action  by  dependent  in  Massachusetts       .....  163 


TABLE    OF    CONTENTS.  IX 

CHAPTER  VILL 

CONTRIBUTORY   NEGLIGENCE. 

113.  Contributory  negligence  is  a  defence          .....  164 

1 14.  Exposure  to  sudden  and  imminent  danger      ....       166 

115.  Defendant's  responsible  employees  must  use  reasonable  care 

to  avoid  injury  to  the  plaintiff  when  they  know  he  is  in  a 

dangerous  position  ........  167 

116.  Employee's  right  to  rely  upon  warning  from  person        .         .  169 

117.  Same 171 

118.  Warning  from  object 173 

119.  Inference  of  due  care         ........  174 

120.  Selecting  dangerous  mode  of  performing  work  when  safe  way 

exists      ...........  175 

121.  Same 177 

122.  Other  illustrations  of  due  care  and  contributory  negligence        .  179 

CHAPTER  IX. 

NOTICE. 

123.  Statutes  relating  to  notice  ........  182 

124.  Prior  notice  necessary 183 

125.  Written  notice  required      ........  184 

126.  Notice  in  case  of  instantaneous  death     .....       185 

127.  Notice  must  show  that  it  was  intended  as  the  basis  of  a  claim 

for  damages        .........       185 

128.  Notice  of  the  "time  "of  the  injury 186 

129.  Notice  of  the  "  place  "  of  the  injury 186 

130.  Notice  of  the  «  cause  "  of  the  injury 187 

131.  No  intention  to  mislead,  etc.  .......       189 

132.  Notice  signed  by  plaintiff's  attorney 190 

CHAPTER  X. 

LIMITATION   OF  ACTIONS. 

133.  Statutes,  etc 191 

134.  Amendment  setting  forth  new  cause  of  action,  filed  after  stat- 

ute of  limitations  has  run 192 

135.  Same.     Injury  received  in  another  State         ....       195 

136.  Do  exceptions  or  saving  clauses  in  the  general  statute  of  lim- 

itations  apply   to   actions   under   the    Employers'   Liability 
Acts?   .  .  198 


X  TABLE   OF   CONTENTS. 

137.  Conflict  of  laws 199 

138.  Same 201 

139.  Same.     When  Employers'  Liability  Act  does  not  limit  time  for 

action     .        .         .         .         .        .         .         .        .         •         .  203 

140.  Same.     When  right  exists  at  common  law      ....       204 


CHAPTER  XL 

THE   MEASURE   OF  DAMAGES. 

141.  Injury  not  resulting  in  death      .......  205 

142.  Injury  resulting  in  death  preceded  by  conscious  suffering,  or  in 

death  which  is  not  instantaneous     ......  207 

143.  Injury  resulting  in  instantaneous  death,  or  in  death  not  pre- 

ceded by  conscious  suffering  .......  208 

144.  "  Assessed  with  reference  to  the  degree  of  culpability  "          .       209 

145.  In  Alabama,  damages  are  limited  to  the  pecuniary  loss  or  in- 

jury     210 

146.  When  deceased  employee  is  a  minor  ......  212 

147.  Age,  health,  strength,  capacity  to  earn  money,  and  family  of 

deceased,  as  elements  of  damage  .         .         .         .         .         .  212 

148.  When  the  deceased  leaves  a  widow  or  dependent  next  of  kin       213 

149.  When  the  deceased  leaves  no  widow  or  dependent  next  of  kin  .  216 

150.  Colorado  rules 218 

151.  Other  cases 219 

152.  Exemplary  or  punitive  damages      ......       219 

153.  Excessive  damages  :  how  reduced      ......  220 

154.  Division  of  damages  when  employee's  negligence  has  contrib- 

uted to  his  injury  .         .         .         ,         .         .         .         .         .  221 

155.  Remote  or  conjectural  damages 222 


CHAPTER  XII. 

DIRECTING  A  NONSUIT   ON   VERDICT  FOR   DEFENDANT. 

I.  Defendant's  Negligence, 

156.  Subdivisions  of  subject  and  preliminary  remarks        .         .         .  223 

157.  Is  mere  happening  of  accident  prima  facie  evidence  of  negli- 

gence ?  (1)  Actions  by  non-employees  at  common  law  .  .  226 

158.  Same.    (2)  Common-law  rule  in  actions  by  employees  .         .  228 

159.  Slight  evidence  sufficient,  but  not  mere  scintilla         .         .  .  231 

160.  Automatic  starting  of  machinery 234 

161.  Inference  against  defendant  when  he  introduces  no  evidence  .  237 

162.  What  amounts  to  a  "defensive  explanation"  of  the  injury    .  238 


TABLE    OF    CONTENTS.  XI 

163.  Actions  under  Employers'  Liability  Acts.     Subdivisions  of  sub- 

ject          240 

164.  (a)  Defects  in  the  ways,  works,  machinery,  or  plant      .         .       240 
•165.  Same          .         .         . 243 

166.  (5)  Negligence  of  a  superintendent        .....       245 

167.  Same 247 

168.  (c)  Negligence  of  a  person  in  charge  or  control  of  any  signal, 

switch,  locomotive  engine,  or  train  upon  a  railroad          .       .  249 

169.  Same  251 


CHAPTER  XIII. 

DIRECTING  A  NOXSUIT   OR  VERDICT   FOR   DEFENDANT    (CONTINUED). 

II.  Plaintiff's  Contributory  Negligence. 

170.  Tests  and  illustrations  in  Massachusetts 254 

171.  Alabafiaa  rules         .........       256 

172.  Employee's  death  while  in  discharge  of  duty.     Massachusetts 

cases  ........         ...      259 

173.  Same.     Alabama  cases       ........  262 

CHAPTER  XIV. 

DIRECTING   A   NONSUIT   OR   VERDICT   FOR  DEFENDANT   (CONCLUDED). 

III.  Assumption  of  Risk,  and  Volenti  non  Jit  Injuria. 

A.    DEFECTS  IN  THE   WAYS,   WORKS,   MACHINERY,    OR  PLANT. 

174.  Preliminary  observations  and  subdivisions  of  chapter         .         .  266 

175.  Definitions  and  illustrations    .......       267 

176.  Continuance  in  defendant's  employ  with  knowledge  of  the  risk. 

(1)  English  rule 270 

177.  Same.     Same 274 

178.  Same.     Same.     Statutory  defects 277 

179.  Same.     (2)  Alabama  rule.     Early  cases        .    •    .         .         .       278 

180.  Same.     Same.     Late  cases         .......  280 

181.  Same.     (3)  Massachusetts  rule.      Absence  of  guard  -  rail,  or 

other  safety  appliance 283 

182.  Obvious  danger 286 

183.  Same.     Ignorance  of  plaintiff,  and  failure  to  warn  him  of  in- 

creased danger    .........       288 

184.  Same.     Work  outside  of  ordinary  duty.     Finding  of  due  care 

of  plaintiff 290 

185.  Understanding  and  appreciation  of  danger      ....       291 


Xli  TABLE    OF    CONTENTS. 

186.  Same.     Young  and  inexperienced  employees     ....  294 

187.  Assumption  of  risk  by  minor  employee  ....       296 

B.   NEGLIGENCE  OF  A  SUPERINTENDENT. 

188.  No  assumption  of  risk  from  superintendent's  negligence  under 

the  statute      ..........  298 

189.  Common-law  rule   .........       300 


190.  Negligence  of  one  having  charge  or  control  of  signal,  switch, 

locomotive  engine,  or  train  upon  a  railroad    ....  302 

CHAPTER  XV. 

CONFLICT   OF   LAWS. 

191.  Action  outside  the  State  of  injury  upon  statute  of  the  Sj:ate  of 

injury     ...........  304 

192.  Same.     Not  necessary  that  the  State  of  process  should  give  a 

remedy  for  such  injury  ........  306 

193.  Public  policy .         .308 

194.  Such  statutes  are  not  "  penal "  laws 310 

195.  Statute  of  State  of   process  does  not  apply  to  injuries  caused 

and  received  outside  of  that  State  .....  312 

196.  Negligence  in  one  State  causing  injury  in  another  State          .       316 

197.  Injuries  received  on  navigable  waters         .....  320 

198.  Limit  of  damages  recoverable  and  distribution  thereof  .         .       323 

199.  Procedure  governed  by  lex  fori  ......  324 

CHAPTER  XVI. 

EVIDENCE. 

200.  Fellow-servant's  reputation  for  incompetency     ....  328 

201.  Employer's  subsequent  acts     .......       329 

202.  Previous  specific  acts  of  negligence 330 

203.  Evidence  of  customary  negligence 331 

204.  Evidence  of  superintendence 331 

205.  Burden  of  proving  defendant's  negligence      ....       332 

206.  Burden  of  proving  due  care  of  employee  .....  333 

207.  Same.     Contrary  rule  in  Alabama  and  elsewhere  .         .         .       334 

208.  Burden  of  proving  plaintiff's  infancy 336 

209.  Plaintiff's  belief  that  there  was  no  danger      ....       338 

210.  Attorney's  authority  to  sign  and  serve  notice  presumed     .         .  33^ 

211.  Expert  testimony.     Strength  of  materials,  etc.        .         .         .       337 


TABLE    OF    CONTENTS.  xiii 

212.  Rule  of  railroad  company  as  evidence        .....  339 

213.  Photograph  of  place  of  injury  as  evidence     ....      339 

214.  Res  gestce 349 

215.  Same.     Expressions  of  existing  pain     .          ....      340 

216.  Remoteness.     Other  like  facts 341 

217.  Compromise  offers  .  .         .         .  341 

218.  Mortality  tables          .......  342 

219.  Judicial  notice.     Statutes  of  other  States  must  be  proved  in 

state  courts     ......  342 

220.  Same.  When  federal  courts  will  take  judicial  notice  of  laws  of 

other  States    .  344 


CHAPTER  XVII. 

PLEADING  AND  PRACTICE. 

221.  Omission  to  allege  name  of  superintendent,  or  other  person 

causing  injury 346 

222.  Undue  particularity.     Allegation  that  employer  knew  of  defect  347 

223.  Allegation  of  "  due "  notice        ....  348 

224.  Plea  of  contributory  negligence,  and  waiver  thereof       .         .  348 

225.  General  issue  admits  capacity  in  which  plaintiff  snes  or  defend- 

ant is  sued  ..........       349 

226.  Election  between  statutory  counts  and  joinder  thereof       .         .  350 

227.  Election  between  counts  at  common  law  and  under  the  statute, 

and  joinder  thereof         .         .         .         .         .         .         .         .  352 

228.  Joinder  of  separate  causes  of  action  in  one  count   .         .         .       353 

229.  "  Reporting  "  case  upon  nonsuit          ......  353 

230.  Variance  between  declaration  and  proof          ....       354 

231.  Nonsuit  no  bar  to  new  action      .......  355 

232.  Power  of  Supreme  Court  to  render  such  judgment  as  the  trial 

court  should  have  rendered    .......  355 

233.  New  trial  when  verdict  is  against  the  evidence       .         .         .  356 

234.  Restricting  new  trial  to  certain  issues         .....  357 

235.  Setting  aside  verdict  by  trial  court.     Number  of  times  allow- 

able          357 

236.  Insurance  against  accidents.     Argument  of  counsel        .         .       358 

237.  Allowance  of  exceptions.      Amendment  after  time  for  filing 

original  bill          .........       358 

238.  Same.     Proving  truth  of  exceptions  ......  359 

239.  Whether  motion  to  nonsuit  or  direct  verdict  need  state  partic- 

ulars        359 

240.  "  Due  care  "  should  be  explained  to  jury         .         .         ...       360 

241.  Trial  judge's  decision  that  witness  is  an  expert  :  when  open  to 

revision  ......      360 


XIV  TABLE   OF   CONTENTS. 

242.  Reasonableness  of  employer's  rules  is  a  question  of  law  for  the 

court 361 

APPENDIX 

I.  English  Employers'  Liability  Act  of  1880      .         .         .  .363 

II.  Alabama  Employers'  Liability  Act  of  1885        ...  367 

III.  Massachusetts  Employers'  Liability  Act  of  1887    .         .  .369 

IV.  Colorado  Employers'  Liability  Act  of  1893         .         .         .  373 
V.  Indiana  Employers'  Liability  Act  of  1893      .         .         .  .375 

TABLE  OF  CASES  CITED 379 

INDEX  397 


EMPLOYERS'  LIABILITY  ACTS. 


CHAPTER  I. 


GENERAL    PRINCIPLES. 


Section 

1.  Employers'  Liability  Acts  lib- 

erally construed   in  favor  of 
employees. 

2.  Statutory    right    not    identical 

with    common -law    right    of 
action. 

3.  Prior  English  construction  fol- 

lowed. 

4.  No  retrospective  operation. 

5.  To  what  classes  of  employees 

the  Employers'  Liability  Acts 
apply. 

6.  Contracting  out  of  the  statute, 

or  waiving  its  benefit. 

7.  Same.    Prohibition  by  statute. 

8.  Common-law  rules    as    to    ex- 

empting  employer   from   lia- 
bility for  negligence. 

9.  Agreement  by  parent  of  minor 

employee  not  to  sue  employer. 
10.  "Relief  fund"  agreement  not 
to  sue  employer. 


Section 

11.  Relation  of  employer  and  em- 

ployee must  exist. 

12.  Same.     Other  illustrations. 

13.  "As  if  the  employee  had  not 

been  in  the  service  of  the  em- 
ployer." 

14.  Actions  against  municipal  cor- 

porations. 

15.  Judgment    and    settlement    by 

consent  of  next  friend  of  mi- 
nor employee. 

16.  Suits   in   federal   courts   under 

state  statute. 

17.  Same.  Adopt  construction  given 

to  state  statute  by  state  court. 

18.  Same.     Enforcing    statutes    of 

other  States. 

19.  Federal  courts  are  not  bound  by 

state  decisions  as  to  who  are 
fellow-servants. 

20.  Suit  in  admiralty  court  for  mar- 

itime tort. 


§  1.  Employers'   Liability  Acts   liberally  construed 
in  Favor  of  Employees. 

IN  Massachusetts  it  has  been  decided  that  the  statute 
should  be  liberally  construed  in  favor  of   employees. 


2  EMPLOYERS     LIABILITY   ACTS. 

The  main  purpose  of  the  act,  as  its  title  indicates,  is  to 
extend  the  liability  of  employers,  and  to  render  them 
liable  in  damages  for  certain  classes  of  personal  in- 
juries to  their  employees  for  which  they  were  not  lia- 
ble at  common  law  prior  to  the  passage  of  the  act.  It 
does  not  attempt  to  codify  the  whole  law  upon  the  sub- 
ject, nor  to  restrict  the  employee's  right  of  action  to  the 
cases  mentioned  in  the  act.  If  he  could  have  recovered 
before  the  passage  of  the  act,  he  can  also  recover  since 
its  passage.1 

The  Alabama  Employers'  Liability  Act  has  not  been 
construed  quite  so  liberally.  In  Mobile  &c.  Ry.  v.  Hoi- 
born,  84  Ala.  133,  134,  the  court  by  Mr.  Justice  Clop- 
ton  says :  "  Being  in  derogation  of  the  common  law, 
the  inference  is,  that  the  terms  of  the  act  clearly  import 
the  changes  intended,  and  their  operation  will  not  be 
enlarged  by  construction  further  than  may  be  necessary 
to  effectuate  the  manifest  ends.  Notwithstanding,  a 
narrow  and  restrictive  view  of  the  act  should  not  be 
taken.  In  its  construction  the  court  should  consider  its 
objects,  have  regard  to  the  intentions  of  the  legislature, 
and  take  a  broad  view  of  its  provisions  commensurate 
with  the  proposed  purposes." 

In  Lovell  v.  De  Bardelaben  Coal  Co.,  90  Ala.  13, 17, 
the  court  says  by  Mr.  Justice  McClellan  :  "  It  [the  stat- 
ute] relates  to  a  class  of  cases  in  which  before  no  cause 
of  action  existed,  —  to  a  class  of  in j  uries  the  damages 
for  which,  at  common  law  and  under  our  statutes,  had 
been  bartered  away  before  they  accrued.  The  statute 
was  one  of  enlargement  purely.  No  existing  right  was 

1  Ryalls  v.  Mechanics'  Mills,  150  Mass.  190  ;  Coughlin  v.  Boston  Tow- 
Boat  Co.,  151  Mass.  92  ;  Clark  v.  Merchants  &c.  Co.  151  Mass.  352. 


GENERAL    PRINCIPLES.  3 

curtailed,  limited,  or  taken  away.  The  only  limitations 
in  the  act  were  upon  causes  of  action  created  by  the 
act,  and  having  no  existence  outside  of  it." 

With  respect  to  the  English  act  of  1880,  the  rule  of 
construction  has  been  thus  stated  by  Brett,  M.  R.,  in 
Gibbs  v.  Great  Western  Ry.,  12  Q.  B.  D.  208,  211 : 
"  This  Act  of  Parliament  having  been  passed  for  the 
benefit  of  workmen,  I  think  it  the  duty  of  the  court 
not  to  construe  it  strictly  as  against  workmen,  but  in 
furtherance  of  the  benefit  which  it  was  intended  by 
Parliament  should  be  given  to  them,  and  therefore,  as 
largely  as  reason  enables  one,  to  construe  it  in  their 
favor  and  for  the  furtherance  of  the  object  of  the 
act." 

§  2.  Statutory  Right  not  identical  with  Common-Law 
Right  of  Action.     -. 

The  right  of  an  employee  to  maintain  an  action 
against  his  employer,  under  the  Employers'  Liability 
Act,  is  not  identical  with  his  right  to  maintain  an  action 
at  common  law.  It  may  be  greater  or  it  may  be  less.1 
In  some  cases  he  stands  a  better  chance  of  recovery  at 
common  law  than  under  the  statute.  In  such  cases  it 
is  best  to  frame  the  count  on  the  common-law  liability, 
as  then  the  plaintiff  is  not  obliged  to  give  notice  of 
the  injury,  and  the  amount  recoverable  is  not  limited. 
Where  the  question  is  doubtful,  however,  the  safer  way 
is  to  join  a  common-law  count  with  a  count  on  the 
statute  in  the  same  action.  The  plaintiff  may  also  de- 
scribe his  cause  of  action  as  falling  within  the  terms  of 

1  Coffee  v.  New  York  &c.  Ry.,  155  Mass.  21,  22  ;  Lynch  v.  Allyn,  160 
Mass.  248,  252. 


4  EMPLOYERS     LIABILITY   ACTS. 

two  or  more  sections  or  clauses  of  the  statute,  in  differ- 
ent counts  of  the  same  declaration.1 

§  3.  Prior  English  Construction  followed. 

As  the  Massachusetts  act  is  copied  verbatim  from  the 
English  act  of  1880,  with  only  a  few  variations  in  mat- 
ters of  detail,  the  construction  given  to  the  English  act, 
before  the  adoption  of  the  Massachusetts  act,  is  im- 
portant if  not  controlling  in  determining  the  construc- 
tion to  be  given  to  the  same  terms  in  the  Massachusetts 
act.2 

The  Alabama  statute  of  1885,  as  far  as  it  goes,  is  a 
substantial  copy  of  the  English  act  of  1880.  Some  of 
the  provisions  of  the  English  act  had  received  judicial 
construction  before  the  passage  of  the  Alabama  act.  It 
has  accordingly  been  held  that  the  subsequent  enactment 
by  the  Alabama  legislature  is  persuasive  evidence  of  a 
legislative  adoption  of  the  prior  English  construction.3 

1  Beauregard  v.  Webb  Granite  Co.,  160  Mass.  201  ;  Louisville  &c.  Ry. 
v.  Mothershed,  97  Ala.  261 ;  Highland  Avenue  &c.  Ry.  v.  Dusenberry, 
94  Ala.  413,  418. 

2  Ryalls  v.  Mechanics'  Mills,  150   Mass.  190,   191  ;    Mellor  v.   Mer- 
chants' Manuf.  Co.,  150  Mass.  362, 363.    In  Commonwealth  v.  Hartnett,  3 
Gray,  450,  it  was  held  that  the  decisions  of  the  English  courts,  that  the 
wife  of  the  owner  of  a  building  was  not  within  the  terms  of  a  statute 
which  prohibited  larceny  in  a  building,  would  be  followed  in  the  construc- 
tion of  the  later  Massachusetts  act  of  the  same  purport.    In  delivering 
the  opinion  of  the  court,  Metcalf ,  J.,  says  :  "  It  is  a  common  learning,  that 
the  adjudged  construction  of  the  terms  of  a  statute  is  enacted,  as  well 
as  the  terms  themselves,  when  an  act  which  has  been  passed  by  the  legis- 
lature of  one  state  or  country  is  afterwards  passed  by  the  legislature  of 
another.  .  .  .  For,  if  it  were  intended  to  exclude  any  known  construction 
of  a  previous  statute,  the  legal  presumption  is  that  its  terms  would  be 
so  changed  as  to  effect  that  intention."     Page  451. 

3  Mobile  &c.  Ry.  v,  Holborn,  84  Ala.  133,  134. 


GENERAL    PRINCIPLES.  5 

The  rule  has  been  thus  stated  by  Mr.  Justice  Cole- 
man,  speaking  for  the  court,  in  Birmingham  Ry.  v. 
AUen,  99  Ala.  359,  371 :  « The  Employers'  Act,  as 
found  in  section  2590  and  subdivisions,  is  a  substantial 
if  not  an  exact  copy  of  the  English  act  of  1880.  This 
court  is  not  finally  concluded  by  the  decision  of  any 
other  state  court,  or  the  British  court,  in  their  con- 
struction of  a  similar  statute  ;  but  the  opinions  of 
learned  courts  upon  similar  questions  are  entitled  to 
great  weight,  and  this  is  especially  true  when  the  stat- 
ute from  which  ours  was  copied  had  been  construed 
prior  to  its  enactment  by  our  legislature." 

So,  when  Congress  adopts  the  language  of  an  English 
statute,  the  federal  courts  will  presume  that  it  had  in 
mind  the  construction  given  by  the  English  courts,  and 
intended  to  incorporate  it  into  the  statute.2  So,  like- 
wise, where  the  legislature  of  one  State  adopts  the  lan- 
guage of  a  statute  of  another  State,  it  is  presumed  to 
incorporate  the  construction  given  to  the  statute  by  the 
prior  decisions  of  the  courts  of  such  other  State.3 

§  4.  No  Retrospective  Operation. 

The  first  section  of  the  Massachusetts  act  of  1887  ex- 
pressly provides  that  "  where,  after  the  passage  of  this 
act,  personal  injury  is  caused  to  an  employee,"  etc.,  he 
may  maintain  an  action  therefor  in  the  cases  specified. 
It  follows  that  the  statute  does  not  give  a  right  of  action 

1  Citing  Armstrong  v.  Armstrong,  29  Ala.  538.     See,  also,  Kansas  City 
&c.  Ry.  v.  Burton,  97  Ala.  240,  246. 

2  Interstate  Commerce  Com.  v.  Baltimore  &c.  Ry.  145  U.  S.  263  ; 
McDonald  v.  Hovey,  110  U.  S.  619. 

8  Missouri  Pacific  Ry.  v.  Haley,  25  Kans.  35,  53. 


6  EMPLOYEES     LIABILITY   ACTS. 

for  injuries  received  before  its  passage.     Its  operation 
is  merely  prospective  and  not  retrospective. 

The  Alabama  act  of  1885  does  not  expressly  limit  its 
operation  to  subsequent  injuries ;  nor  does  it  declare 
that  it  shall  apply  to  prior  injuries.  The  well-settled 
rule  in  like  cases  is  that,  unless  there  is  something  in  the 
act  to  show  that  the  legislature  intended  to  give  a  new 
remedy  for  prior  acts  of  negligence,  the  statute  will  be 
construed  as  merely  prospective  in  its  operation.1  Ap- 
plying this  rule  to  the  Alabama  act,  the  conclusion  is 
that  it  does  not  give  a  right  of  action  for  injuries  re- 
ceived before  the  statute  took  effect.  But  the  operation 
of  the  statute  upon  subsequent  injuries  is  not  prevented 
by  the  fact  that  the  employee  was  working  under  a  con- 
tract entered  into  prior  to  the  passage  of  the  act.2 

§  5.   To  what  Classes  of  Employees  the  Employers' 
Liability  Acts  apply. 

The  various  statutes  differ  considerably  with  respect 
to  the  classes  of  persons  entitled  to  their  benefit.  The 
acts  of  Alabama  and  Colorado  apply  to  all  classes  of 
employees  and  contain  no  exceptions.  The  Massachu- 
setts act  applies  to  all  classes  except  domestic  servants 
and  farm  laborers  injured  by  other  fellow-employees.3 
The  Indiana  act  applies  merely  to  employees  of  railroad 
and  other  corporations,  except  municipal,  operating  in 
the  State,  and  does  not  extend  to  the  employees  of  firms 
or  of  individuals.4  The  English  act  applies  to  railway 

1  Kelley  v.  Boston  &  Maine  Ry.  135  Mass.  448. 

2  Alabama  Great  Southern  Ry.  v.  Carroll,  97  Ala.  126,  137. 
8  Mass.  St.  1887,  ch.  210,  §  7. 

«•  Ind.  St.  1893,  ch.  130,  §  1. 


GENERAL   PRINCIPLES.  7 

servants,  and  to  any  person  to  whom  the  Employers  and 
Workmen  Act,  1875,  applies.1 

A  state  statute,  giving  a  right  of  action  for  a  personal 
injury  in  general  terms,  applies  to  citizens  of  other 
States  injured  within  the  State,  as  well  as  to  citizens  of 
the  State  in  question.  It  has  even  been  intimated  that 
a  statute  which  purported  to  limit  the  right  to  citizens 
of  the  State,  and  to  exclude  citizens  of  other  States, 
would  contravene  section  2  of  article  4  of  the  United 
States  Constitution,  declaring  that  "  the  citizens  of  each 
State  shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  in  the  several  States." 

§  6.  Contracting  out  of  the  Statute,  or  waiving  its 

Benefit. 

In  England  it  has  been  held  that  it  is  not  contrary  to 
the  policy  of  the  statute  to  allow  an  employee  to  waive 
the  benefit  of  the  act  by  contract,  and  that  such  a  con- 
tract is  binding  not  only  upon  the  employee  himself, 
but  also  upon  his  representatives.3  In  the  English  act 
of  1880,  under  which  Griffiths  v.  Dudley,  9  Q.  B.  D. 
357,  was  decided,  there  was  no  clause  prohibiting  the 
making  of  such  a  contract. 

In  Alabama,  however,  under  its  Employers'  Liability 
Act,  although  it  contains  no  clause  expressly  avoiding 
contracts  waiving  the  benefit  of  the  act,  it  has  been 
held  that  such  a  contract  is  void  as  contrary  to  public 
policy.  In  Hissong  v.  Richmond  &c.  Ry.,  91  Ala.  514, 

1  43  &  44  Viet.  c.  42,  §  8.     See  Morgan  v.  London  Omnibus  Co.,  13 
Q.  B.  D.  832  ;  Yarmouth  v.  France,  19  Q.  B.  D.  647. 

2  Jeffersonville  &c.  Ry.  v.  Hendricks,  41  Ind.  48,  71. 

8  Griffiths  v.  Dudley,  9  Q.  B.  D.  357.     But  see  Baddeley  y.  Granville, 
19  Q.  B.  D.  423,  426,  427. 


8  EMPLOYERS'  LIABILITY  ACTS. 

a  switchman  was  injured  while  coupling  cars,  through 
the  negligence  of  the  engineer.  One  of  the  conditions 
of  the  contract  of  employment  was  "  that  the  regular 
compensation  paid  for  the  services  of  employees  shall 
cover  all  risks  incurred,  and  liability  to  accident  from 
any  cause  whatever.  If  an  employee  is  disabled  by  ac- 
cident or  other  cause,  the  right  to  claim  compensation 
for  injuries  will  not  be  recognized."  In  holding  this 
contract  void,  the  court,  by  Clopton,  J.,  says  on  page 
517  :  "  The  statute  makes  the  employer  answerable  in 
damages  when  an  employee  is  injured  in  any  of  the 
classes  of  negligence  specified  therein.  Such  a  stipula- 
tion, being  in  contravention  of  the  statutory  provisions, 
is  opposed  to  public  policy,  and  does  not  avail  to  secure 
non-liability  for  an  injury  caused  to  an  employee  by 
defendant's  own  negligence  or  misconduct  in  the  cases 
specified  in  the  statute,"  1 

This  view  is  more  in  line  with  the  general  current  of 
authority,  and  seems  better  than  the  English  doctrine. 

In  line  with  these  decisions,  it  has  been  subsequently 
held  that  the  rights  and  liabilities  conferred  and  im- 
posed by  the  statute  do  not  spring  from  the  contract  of 
employment,  and  that  the  only  office  of  the  contract  is 
to  establish  the  relation  of  master  and  servant.  "  Find- 
ing this  relation,  the  statute  imposes  certain  duties  and 
limitations  on  the  parties  to  it,  wholly  regardless  of 
the  stipulations  of  the  contract  as  to  the  rights  of  the 
parties  under  it,  and,  it  may  be,  in  the  teeth  of  such 
stipulations."  It  was  accordingly  held  that  the  inak- 

1  See,  also,  Richmond  &c.  Ry.  v.  Jones,  92  Ala.  218. 

2  Alabama  Great  Southern  Ry.  v.  Carroll,  97  Ala.  126,  138,  per  Mc- 
Clellan,  J.,  for  the  court. 


GENERAL   PRINCIPLES.  9 

ing  and  part  performance  of  the  contract  of  service  in 
Alabama  did  not  give  an  employee  a  right  of  action 
under  the  Alabama  statute  for  an  injury  received  in 
Mississippi,  in  which  latter  State  there  was  no  Employ- 
ers' Liability  Act. 

§  7.  Same.    Prohibition  by  Statute. 

In  Indiana,  whose  act  applies  to  all  corporate  em- 
ployers except  municipal  corporations,  the  fifth  section 
provides  that  — 

"  All  contracts  made  by  railroads  or  other  corpora- 
tions with  their  employees,  or  rules  or  regulations 
adopted  by  any  corporation  releasing  or  relieving  it 
from  liability  to  any.  employee  having  a  right  of  action 
under  the  provisions  of  this  act,  are  hereby  declared  null 
and  void." 

In  Iowa  the  railroad  act  declares  that  "  no  contract 
which  restricts  such  liability  shah1  be  legal  or  bind- 


In  Massachusetts  a  statute  passed  in  1877,  ten  years 
prior  to  the  Employers'  Liability  Act,  declares  that  — 

"No  person  or  corporation  shall,  by  a  special  con- 
tract with  persons  in  his  or  its  employ,  exempt  himself 
or  itself  from  any  liability  which  he  or  it  might  other- 
wise be  under  to  such  persons  for  injuries  suffered  by 
them  in  their  employment,  and  which  result  from  the 
employer's  own  negligence,  or  from  the  negligence  of 
other  persons  in  his  or  its  employ."  3 

1  Indiana  Acts  of  1893,  ch.  130,  §  5,  March  4,  1893. 

2  Iowa  Rev.  Code  1880,  §  1307.     See,  also,  Texas  Acts  of  1891,  ch.  24, 
§  3  ;  Florida  Acts  of  1891,  No.  62,  May  4,   1891  ;  Wyoming  Acts  of 
1891,  ch.  28. 

»  Pub.  Sts.  ch.  74,  §  3  ;  St.  1877,  ch.  101,  §  1. 


10  EMPLOYERS'  LIABILITY  ACTS. 

Though  the  point  has  not  yet  been  raised,  it  would 
probably  be  held  that  this  statute  applies  to  a  right 
of  action  conferred  by  the  Employers'  Liability  Act, 
as  well  as  to  a  right  of  action  existing  independently 
of  that  act.  In  either  case,  a  contract  exempting  the 
employer  from  liability  would  be  probably  void,  and  no 
defence  to  an  action.  In  1894  this  statute  was  reen- 
acjted  in  the  same  terms.1 

In  actions  under  Mass.  Public  Statutes,  ch.  112,  §  212, 
giving  a  right  of  action  for  the  benefit  of  the  widow 
and  children  or  next  of  kin  of  a  person  killed  by  the 
negligence  of  a  railroad  company,  it  has  been  decided 
that  a  release  of  damages  given  by  the  deceased  does 
not  release  the  company  from  liability  or  prevent  a  re- 
covery, because  the  amount  recovered  is  "  in  substance 

1  St.  1894,  ch.  508,  §  6. 

But  a  contract  that  an  employee  will  not  hold  the  employer  liable  for 
the  obvious  risks  of  the  business  which  he  undertakes  is  not  within  the 
meaning  of  this  statute  and  is  valid,  because  an  employer  is  not  liable  for 
an  injury  caused  by  an  obvious  danger,  either  at  common  law  or  under  the 
Employers'  Liability  Act.  In  O'Maley  v.  South  Boston  Gas  Light  Co., 
158  Mass.  135,  at  137,  Knowlton,  J.,  says  for  the  court :  — 

"  We  have  no  doubt  that  one  may  expressly  contract  to  take  the  obvi- 
ous risks  of  danger  from  inferior  or  defective  machinery,  as  well  since 
the  enactment  of  this  statute  [Employers'  Liability  Act]  as  before.  If 
he  does  so,  his  employer  owes  him  no  duty  in  respect  to  such  risks,  and, 
if  he  is  hurt  from  a  cause  included  in  the  contract,  the  defect  is  not 
within  the  terms  of  the  statute  ;  the  maxim,  Volenti  non  jit  injuria,  ap- 
plies, and  he  cannot  recover." 

The  point  decided  in  the  case  just  cited  was  that  the  law  implied  such 
a  contract  ;  and  that  an  employee  could  not  recover  for  an  injury  received 
in  falling  off  his  employer's  coal-run,  which  was  not  protected  by  a  guard. 
When,  however,  the  employer  has  committed  a  breach  of  an  express  stat- 
utory duty,  the  maxim  does  not  apply,  and  will  not  relieve  him  from  lia- 
bility under  the  Employers'  Liability  Act.  Baddeley  v.  Granville,  19  Q. 
B. D.  423. 


GENERAL   PRINCIPLES.  11 

a  penalty  given  to  the  widow  and  children  and  next  of 
kin,  instead  of  to  the  Commonwealth." 

§  8.  Common-Law  Rules  as  to  exempting  Employer 
from  Liability  for  Negligence. 

Irrespective  of  statute  it  has  been  generally  held  in 
the  United  States  that  a  contract  made  in  advance 
whereby  an  employee  agrees  to  release  and  discharge 
his  employer  for  any  injury  he  may  receive  by  reason  of 
the  negligence  of  his  employer,  or  of  his  servants,  is 
contrary  to  public  policy  and  void.2  A  contrary  rule 
prevails,  however,  in  Georgia.3 

In  Bailey  on  Master's  Liability,  the  Georgia  rule  is 
approved  ;  and  it  would  seem  that  the  learned  author  is 
of  opinion  that  a  state  statute  which  expressly  prohibits 
the  making  of  such  a  waiving  contract  is  itself  contrary 
to  public  policy  and  void,  as  applied  to  such  risks  as 
the  employee  impliedly  assumed  at  common  law.  Thus, 
on  pages  478,  479,  it  is  said :  "  Courts,  in  giving  to 
such  statutes  the  force  of  prohibiting  the  assumption  of 
those  risks  by  express  terms  in  a  contract  which  were 
impliedly  assumed  at  common  law  by  the  ordinary  con- 
tract of  service,  upon  the  ground  that  such  contracts  are 

1  Doyle  v.  Fitchburg  Ry.,  162  Mass.  66,  71,  per  Morton,  J.    See,  also, 
Commonwealth  v.  Vermont  &c.  Ry.,  108  Mass.  7. 

2  Roesner  v.  Herman,  8  Fed.  Rep.  782  ;  Railway  Co.  v.  Spangler,  44 
Ohio  St.  471,  8  N.  E.  467  ;  Kansas  Pacific  Ry.  v.  Peavey,  29  Kans.  169  ; 
8.  c.,  34  Kans.  472  ;  Little  Rock  &c.  Ry.  v.  Eubanks,  48  Ark.  460  ;  3  S. 
W.  Rep.  808  ;  2  Thompson  on  Neg.  1025  (criticising  Western  &c.  Ry.  v. 
Bishop,  50  Ga.  465,  and  later  Georgia  cases)  ;  Johnson  v.  Richmond  &c. 
Ry.  86  Va.  975  ;  Richmond   &c.  Ry.  v.  Jones,  92  Ala.  218  ;  Purdy  v. 
Rome  &c.  Ry.  125  N.  Y.  209. 

8  Western  &c.  Ry.  v.  Bishop,  50  Ga.  465  ;  Fulton  Mills  v.  Wilson,  89 
Ga.  318. 


12  EMPLOYERS'  LIABILITY  ACTS. 

against  public  policy,  must  in  effect  declare  that  the 
common  law  was  against  public  policy."  And  on  page 
480  it  is  said :  "  An  act  cannot  be  made  against  public 
policy  by  a  simple  declaration  that  it  is  so." 

The  learned  author  seems  to  overlook  the  well-settled 
principles  of  law  that  the  legislature,  and  not  the  court, 
is  the  final  judge  of  public  policy ;  that  it  has  the  power 
to  change  the  rule  of  public  policy  at  any  time,  whether 
the  former  rule  was  of  common  law  or  of  .statutory 
origin  ;  that  the  legislature's  decision  upon  this  question 
is  binding  upon  the  courts ;  and  that  no  statute  can 
be  declared  void  by  the  courts  on  the  ground  that  it  is 
contrary  to  public  policy.1 

In  the  License  Tax  Cases,  ubi  supra,  Mr.  Chief  Jus- 
tice Chase,  in  delivering  the  opinion  of  the  court,  says 
on  page  469 :  "  The  legislature  has  thought  fit,  by  en- 
actments clear  of  all  ambiguity,  to  impose  penalties 
for  unlicensed  dealing  in  lottery  tickets  and  in  liquors. 
These  enactments,  so  long  as  they  stand  unrepealed 
and  unmodified,  express  the  public  policy  in  regard  to 
the  subjects  of  them.  The  proposition  that  they  are 
contrary  to  public  policy  is  therefore  a  contradiction 
in  terms,  or  it  is  intended  as  a  denial  of  their  expedi- 
ency or  their  propriety.  If  intended  in  the  latter  sense, 
the  proposition  is  one  of  which  the  courts  cannot  take 
cognizance." 

In  the  City  of  Norwich,  118  U.  S.  468, 495,  in  which 
it  was  held  that  insurance  is  no  part  of  a  shipowner's 
interest  in  the  ship  or  freight  within  the  meaning  of 

1  License  Tax  Cases,  5  Wall.  462  ;  Powell  v.  Pennsylvania,  127  U.  S. 
678,  685  ;  Sharpless  v.  Mayor,  21  Pa.  St.  147,  159  ;  Hedderick  v.  State, 
101  Ind.  564  ;  Mobile  v.  Yuille,  3  Ala.  137. 


GENERAL   PRINCIPLES.  13 

the  Limited  Liability  Act  of  1851  (U.  S.  Rev.  Stats. 
§§  4282-4287),  the  court  says  by  Mr.  Justice  Bradley  : 
"  The  truth  is,  that  the  whole  question,  after  all,  comes 
back  to  this  :  Whether  a  limited  liability  of  shipowners 
is  consonant  to  public  policy  or  not.  Congress  has 
declared  that  it  is,  and  they,  and  not  we,  are  the  judges 
of  that  question." 

§  9.  Agreement  by  Parent  of  Minor  Employee  not  to 

sue  Employer. 

A  release  of  all  claim  for  damages  for  personal  in- 
juries which  may  be  received  by  a  minor  child  of  the 
releasor,  while  in  the  employ  of  the  defendant,  may  bar 
an  action  by  the  parent ;  but  it  will  not  prevent  the 
minor  from  recovering  damages  estimated  from  the  time 
of  reaching  majority  to  the  probable  time  of  his  death.1 

§  10.  "  Relief  Fund "  Agreement   not   to    sue  Em- 
ployer. 

A  contract  by  which  an  employee  may  either  accept 
the  benefit  of  a  relief  fund  made  up  of  contributions 
from  the  employer  and  employees,  or  sue  for  damages 
for  a  personal  injury  caused  by  the  employer's  negli- 
gence, is  not  contrary  to  public  policy,  and  if  after  in- 
jury the  employee  accepts  money  from  such  relief  fund, 
he  waives  the  right  to  sue,  and  cannot  recover  damages 
for  his  injuries.2 

Even  if  the  employee  is  a  minor,  such  a  contract  is 

1  International  &c.  Ry.,  v.  Hinzie,  82  Texas,  623. 

2  Lease  v.  Pennsylvania  Ry.,  10  Ind.  App.  47  ;  Spitze  v.  Baltimore  &c. 
Ry.,  75  Md.  162  ;  23  Atl.  Rep.  307  ;  Martin  v.  Baltimore  &c.  Ry.,  41  Fed. 
Rep.  125  ;  State  v.  Baltimore  &c.  Ry.,  36  Fed.  Rep.  655  ;  Owens  v.  Balti- 
more &c.  Ry.,  35  Fed.  Rep.  715. 


14  EMPLOYEES'  LIABILITY  ACTS. 

binding  upon  him  if  it  entitles  him  to  receive  the  bene- 
fits of  the  relief  fund,  both  where  the  employer  is  and 
is  not  liable  at  law  for  the  injury.  It  is  considered 
to  be  to  the  minor's  advantage,  and  he  cannot  recover 
damages  of  the  employer  either  at  common  law  or 
under  the  Employers'  Liability  Act  of  England.1 

§  11.  Relation  of  Employer  and  Employee  must  exist. 

To  maintain  an  action  under  the  Employers'  Liability 
Act,  the  person  injured  must  have  been  in  the  employ 
of  the  defendant  at  the  time  of  the  injury,2  and  must 
also  have  been  doing  the  work  of  the  defendant,  and 
not  that  of  some  one  else,  at  that  time.3  The  statutes 
of  Massachusetts  and  of  Colorado  contain  a  qualifica- 
tion of  this  rule,  however,  and  render  the  employer  of 
an  independent  contractor  liable  in  certain  cases  to  the 
employees  of  such  contractor.4 

In  Tennessee  Coal  Co.  v.  Hayes,  97  Ala.  201,  the 
plaintiff's  father  was  employed  by  the  defendant  rail- 
road to  load  its  coal  cars  at  a  certain  price  per  car. 
The  plaintiff  was  a  minor,  and  was  working  under  a 
request  of  the  defendant's  superintendent  made  to  his 
father  to  assist  the  latter.  The  plaintiff's  name  was  not 
on  the  defendant's  pay-roll,  and  his  father  received  his 

1  Clements  v.  London  &c.  Ry.,  [1894]  2  Q.  B.  482.     In  Flower  v.  Lon- 
don &c.  Ry.,  [1894]  2  Q.  B.  65,  a  contract  between  a  boy  of  thirteen 
years  of  age  and  the  defendant  railroad,  whereby  the  road  agreed  to  let 
him  travel  on  the  line  at  special  rates,  and  he  exempted  it  of  liability  for 
negligence,  was  held  not  binding  on  the  minor,  because  it  was  to  his  detri- 
ment. 

2  Dane  v.  Cochrane  Chemical  Co.,  164  Mass.  453  ;  Georgia  Pacific  Ry. 
v.  Propst,  85  Ala.  203. 

3  Dean  v.  East  Tennessee  &c.  Ry.,  98  Ala.  586. 

4  Tooiney  v.  Donovan,  158  Mass.  232  ;  post,  §§  93,  94. 


GENERAL   PRINCIPLES.  15 

pay.  It  was  held  that  the  plaintiff  was  an  employee  of 
the  defendant  within  the  meaning  of  the  Employers' 
Liability  Act,  and  was  entitled  to  its  benefit. 

In  Wild  v.  Waygood,  [1892]  1  Q.  B.  783,  the  plain- 
tiff was  in  the  general  employ  of  a  builder  who  was  en- 
gaged in  erecting  a  house.  The  defendant  contracted 
with  this  builder  to  construct  a  lift  in  the  house,  and 
sent  a  joiner  named  Duplea  to  do  the  work.  Duplea 
requested  the  builder's  foreman  to  lend  him  a  man  to 
assist  him,  and  the  foreman  sent  the  plaintiff  for  that 
purpose.  There  was  some  evidence  that  the  defendant 
agreed  to  pay  the  plaintiff's  wages  while  he  was  so  en- 
gaged. Upon  the  third  day  of  his  employment,  the 
plaintiff  was  injured  through  the  negligence  of  Duplea. 
It  was  held  that  this  evidence  would  warrant  a  find- 
ing that  the  relation  of  employer  and  employee  existed 
between  the  parties,  and  that  the  defendant  was  liable 
under  the  English  act  of  1880. 

§  12.  Same.     Other  Illustrations. 

The  mere  fact  that  the  defendant  retains  the  right  to 
decide  how  work  shall  be  done  on  his  premises,  in  his 
agreement  with  another  person  who  hires  and  pays  the 
plaintiff  to  do  the  work,  does  not  show  that  the  relation 
of  employee  and  employer  exists  between  the  plaintiff 
and  the  defendant.  In  Dane  v.  Cochrane  Chemical 
Co.,  164  Mass.  453,  the  plaintiff  was  injured  through 
the  negligence  of  one  Johnson,  and  he  alleged  that 
Johnson  was  in  the  employ  of  the  defendant  as  su- 
perintendent. The  defence  was  that  Johnson  was  not 
in  the  defendant's  employ,  but  was  an  independent 
contractor,  who  had  hired  the  plaintiff,  and  that  the 


16  EMPLOYERS'  LIABILITY  ACTS. 

relation  of  employee  and  employer  did  not  exist  between 
the  plaintiff  and  the  defendant. 

The  testimony  showed  that  Johnson  was  employed 
by  the  defendant  under  a  continuing  contract  to  do 
carpentry  work  which  became  necessary  from  time  to 
time.  He  hired  the  men  to  do  this  work,  among  others 
the  plaintiff,  and  he  superintended,  paid,  and  discharged 
them.  The  defendant  paid  Johnson  $2.50  a  day  for 
his  work,  and  25  cents  a  day  for  each  man  employed 
by  Johnson  in  addition  to  the  amount  which  Johnson 
agreed  to  pay  the  men.  Johnson  furnished  the  tools 
and  the  defendant  the  material  required  for  the  work. 
The  account  between  Johnson  and  the  defendant  was 
usually  settled  monthly,  and  Johnson  paid  his  work- 
men every  Saturday.  Their  names  were  not  on  the 
defendant's  pay-roll,  nor  were  they  ever  paid  by  the 
defendant.  There  was  testimony  which  would  justify 
the  jury  in  finding  that  the  defendant  determined  what 
repairs  and  alterations  requiring  carpentry  work  should 
be  made,  and  when  and  how  they  should  be  made,  al- 
though, when  it  decided  upon  what  repairs  and  altera- 
tions were  to  be  made,  it  usually  left  the  manner  of 
making  them  to  the  discretion  of  Johnson.  It  did  not 
appear  that  Johnson  was  authorized  to  hire  workmen 
on  account  of  the  defendant,  or  that  the  workmen  hired 
by  him  ever  understood  that  they  were  to  be  paid  by 
the  defendant,  or  that  the  defendant  or  Johnson  so  un- 
derstood the  matter.  It  was  held  in  an  action  under 
the  Employers'  Liability  Act  that  the  evidence  would 
not  warrant  the  jury  iri  finding  that  the  plaintiff  was 
in  the  employ  of  the  defendant,  and  that  the  defend- 
ant was  not  liable.  The  test  which  seems  to  have 


GENERAL   PRINCIPLES.  17 

controlled  the  court  in  reaching  this  conclusion  is  thus 
stated  by  Mr.  Chief  Justice  Field,  on  pages  456,  457  : 
"  Could  the  plaintiff  have  recovered  his  wages  of  the 
defendant  if  they  had  not  been  paid  by  Johnson  ? 
Did  Johnson  hire  the  plaintiff  on  his  own  account, 
or  as  agent  for  the  defendant  ?  .  .  .  The  fact  that 
the  defendant  retained  the  right  to  decide  how  work 
should  be  done  on  its  premises  does  not  of  itself  make 
the  workmen  employed  by  Johnson  employees  of  the 
defendant.  Apparently  Johnson  employed  whom  he 
pleased,  and  directed  the  men  employed  by  him  in  the 
performance  of  their  work,  whether  upon  the  premises 
of  the  defendant  or  upon  other  premises  where  he 
might  be  doing  work.  On  the  evidence  we  do  not 
think  that  the  jury  could  properly  find  that  the  rela- 
tion of  employee  and  employer  existed  between  the 
parties." 

The  performance  of  •  a  single  casual  service  by  the 
plaintiff^  at  the  request  of  the  defendant's  conductor, 
does  not  create  the  relation  of  employer  and  employee 
between  the  parties. 

In  Georgia  Pacific  Ry.  v.  Propst,  85  Ala.  203,  a 
night-watchman  was  requested  by  the  conductor  of  a 
freight  train  to  make  a  coupling,  and,  while  attempting 
to  do  so,  was  injured.  On  a  former  appeal  of  this  case 
it  was  held  that  in  case  of  emergency  the  conductor 
had  implied  authority  to  hire  brakemen,1  and  the  plain- 
tiff contended  that  the  conductor's  request  to  couple 
the  cars  constituted  a  contract  of  employment  which 
was  binding  upon  the  defendant.  But  the  court  held 
that  "  more  is  essential  than  a  mere  order  or  request  to 

1  Georgia  Pacific  Ry.  v.  Propst,  83  Ala.  518. 


18  EMPLOYERS'  LIABILITY  ACTS. 

couple  cars  at  one  time  and  place,  or  doing  a  single  act, 
to  constitute  an  employment  within  the  scope  of  the 
implied  authority  of  the  conductor.  It  must  be  to  ren- 
der service  to  some  extent  continuous  in  its  nature."  l 
It  was  accordingly  decided  that  the  plaintiff  could  not 
recover  under  the  statute. 

As  to  when  the  relation  of  employer  and  employee 
does  or  does  not  exist,  see,  also,  the  cases  cited  below.2 

§  13.  "As  if  the  Employee  had  not  been  in  the  Ser- 
vice of  the  Employer." 

The  Massachusetts  act  provides  that  in  certain  speci- 
fied cases  an  employee  shall  have  the  same  right  of 
compensation  and  remedies  against  his  employer  "  as  if 
the  employee  had  not  been  an  employee  of  nor  in  the 
service  of  the  employer,  nor  engaged  in  its  work." 3 
"  In  other  words,  in  the  cases  specified  the  defence  of 
common  employment  with  the  person  through  whose 
negligence  the  injury  was  caused  is  taken  away." 4 

The  Alabama  act  of  1885  declares  that  the  employer 

1  Per  Clopton,  J.,  for  the  court,  p.  207. 

2  Shea  v.  Gurney,  163  Mass.  184  ;  Morgan  v.  Sears,  159  Mass.  570 ; 
Reagan  v.  Casey,  160  Mass.  374  ;  Huff  v.  Ford,  12&  Mass.  24 ;  Forsyth  v. 
Hooper,  11  Allen,  419  ;  Johnson  v.  Boston,  118  Mass.  114  ;  Kimball  v. 
Cushman,  103  Mass.  194  ;  Ward  v.  New  England  Fibre  Co.,  154  Mass. 
419  ;  Corbin  v.  American  Mills,  27  Conn.  274  ;  Hexamer  v.  Webb,  101 
N.  Y.  377  ;  McCafferty  v.  Spuyten-Duvil  &c.  Ry.,  61  N.  Y.  178  ;  Speed 
v.  Atlantic  &  Pacific  Ry.,  71  Mo.  303  ;  Schwartz  v.  Gilmore,  45  111.  455  ; 
Cincinnati  v.  Stone,  5  Ohio  St.  38  ;  Railroad  Co.  v.  Banning,  15  Wall. 
649  ;  Water  Co.  v.  Ware,  16  Wall.  666  ;  Philadelphia  &c.  Ry.  v.  Bitzer, 
58  Md.  372  ;  Phillips  v.  Chicago  &c.  Ry.,  64  Wis.  475 ;  Cameron  v.  Nys- 
trom,  [1893]  A.  C.  308. 

8  St.  1887,  ch.  270,  §  1,  cl.  3. 

4  Coffee  v.  New  York  &c.  Ry.,  155  Mass.  21,  22,  per  Allen,  J.,  for  the 
court. 


GENERAL    PRINCIPLES.  19 

is  liable  to  the  employee  "  as  if  he  were  a  stranger,  and 
not  engaged  in  such  service  or  employment."  In  con- 
struing this  clause,  the  Supreme  Court  of  Alabama  has 
said:  — 

"  The  expression,  *  as  if  he  were  a  stranger,'  is  inapt, 
and  literally  interpreted,  would  put  the  employee  in  the 
position  of  a  trespasser,  or  mere  licensee ;  but  it  is 
apparent  that  such  is  not  the  intention,  shown  by  the 
succeeding  words,  '  and  not  engaged  in  such  service  or 
employment.'  The  purpose  of  the  statute  is,  to  protect 
the  employee  against  the  special  defences  growing  out 
of,  and  incidental  to,  the  relation  of  employer  and 
employee  ;  and  the  result  is  to  take  from  the  employer 
such  special  defences,  but  to  leave  him  all  the  defences 
which  he  has  by  the  common  law  against  one  of  the 
public,  not  a  trespasser  nor  a  bare  licensee." 

In  Thomas  v.  Quartermaine,  18  Q.  B.  D.  685,  700, 
Fry,  L.  J.,  says  :  "  If  the  workman  is  to  have  the  same 
rights  as  if  he  were  not  a  workman,  whose  rights  is  he 
to  have  ?  Who  are  we  to  suppose  him  to  be  ?  I  think 
that  we  ought  to  consider  him  to  be  a  member  of  the 
public  entering  on  the  defendant's  property  by  his  invi- 
tation." In  the  same  case  Bowen,  L.  J.,  says  on  pages 
693,  694 :  "  The  true  view  in  my  opinion  is  that  the 
act,  with  certain  exceptions,  has  placed  the  workman  in 
a  position  as  advantageous  as,  but  no  better  than,  that 
of  the  rest  of  the  world  who  use  the  master's  premises 
at  his  invitation  on  business.  If  it  has  created  any 
further  or  other  duty  to  be  fulfilled  by  the  master,  I 
do  not  know  what  it  is,  how  it  is  to  be  defined,  or  who 
is  to  define  it." 

1  Mobile  &c.  Ry.  v.  Holborn,  84  Ala.  133,  136,  per  Clopton,  J. 


20  EMPLOYERS'  LIABILITY  ACTS. 

§  14,  Actions  against  Municipal  Corporations. 

The  Massachusetts  and  Alabama  acts  apply  to  cities 
and  towns,  and  give  a  right  of  action  against  them  to 
their  employees  in  certain  cases,  as  for  negligence  in 
digging  a  trench.1 

The  statute,  however,  merely  gives  the  employee  "  the 
same  right  of  compensation  and  remedies  against  the 
employer  as  if  the  employee  had  not  been  an  employee 
of  nor  in  the  service  of  the  employer,  nor  engaged  in  its 
work."  His  rights  are  no  greater  than  those  of  a  travel- 
ler on  a  public  highway  within  the  limits  of  the  city  or 
town.  When  the  act  complained  of  is  the  neglect  of  a 
public  duty  imposed  upon  the  city  or  town  by  law  for 
the  benefit  of  the  public,  and  from  the  performance  of 
which  it  receives  no  profit  or  advantage,  it  is  not  liable 
in  damages  for  a  personal  injury  received  either  by  a 
traveller 2  or  by  an  employee.  Hence,  where  a  lineman 
employed  on  the  fire-signal  system  of  a  city  was  injured 
by  the  breaking  of  a  pole  to  which  the  wires  were 
attached,  it  was  held  that  the  city  was  not  liable  under 
the  Massachusetts  act,  though  the  breaking  was  due  to 
the  negligence  of  the  city.3  So,  where  a  city  employee 
is  injured  through  the  negligence  of  the  superintendent 
or  assistant  superintendent  of  streets,  it  has  been  held 
in  Massachusetts  that  the  city  is  not  liable  under  the 
Employers'  Liability  Act,  because  the  negligence  was 

1  Connolly  v.  Waltham,  156  Mass.  368  ;  Conroy  v.  Clinton,  158  Mass. 
318  ;  Hennessy  v.  Boston,  161  Mass.  502  ;  Sheffield  v.  Harris,  101  Ala. 
564  ;  14  So.  Rep.  357. 

2  Hafford  v.  New  Bedford,  16  Gray,  297  ;  Fisher  v.  Boston,  104  Mass. 
87  ;  Hill  v.  Boston,  122  Mass.  344. 

8  Pettingell  v.  Chelsea,  161  Mass.  368. 


GENERAL   PRINCIPLES.  21 

that  of  a  public  officer,  and  the  statute  does  not  change 
the  law  of  agency ; l  but  the  contrary  has  been  decided 
in  Alabama  under  its  statute.2 

But  where  the  duty  is  not  imposed  by  law,  but  is 
voluntarily  assumed  by  the  city  or  town,  and  especially 
if  it  receives  payment  or  part  payment  from  the  abut- 
tors  for  any  special  advantages,  such  as  sewers,  the  duty 
performed  is  not  a  public  duty  within  the  meaning  of 
the  rule  exempting  the  city  or  town  from  liability,  and 
it  will  therefore  be  liable  to  an  employee  who  is  injured 
through  its  negligence  or  that  of  its  officers.3 

A  town  or  city  may  be  estopped  to  deny  the  legality 
of  the  appointment  of  a  superintendent  in  an  action 
against  it  by  an  employee  under  the  Employers'  Liabil- 
ity Act.  If  the  person  serves  the  city  in  the  capacity 
of  superintendent  of  the  work  in  question,  and  the  city 
authorities  acquiesce  in  such  service  and  take  the  benefit 
of  his  skill  and  labor,  it  will  not  be  heard  to  deny  the 
legality  of  his  appointment,  and  it  will  be  responsible  for 
his  acts  done  within  the  scope  of  the  service.  It  can- 
not appropriate  the  benefit  and  repudiate  the  burden.4 

§  15.  Judgment  and  Settlement  by  Consent  of  Next 

Friend  of  Minor  Employee. 

Under  the  Alabama  statute  it  has  been  held  that  the 
next  friend  of  a  minor  employee  cannot  compromise  a 
suit  brought  on  behalf  of  the  minor  for  personal  inju- 

1  McCann  v.  Waltham,  163  Mass.  344. 

2  Sheffield  v.  Harris,  101  Ala.  564  ;  14  So.  Rep.  357  ;  Lewis  v.  Mont- 
gomery, 103  Ala.  000  ;  16  So.  Rep.  34. 

3  Coan  v.  Marlborough,  164  Mass.  206  ;  41  N.  E.  Rep.  238  ;  Murphy 
v.  Lowell,  124  Mass.  564  ;  Child  v.  Boston,  4  Allen,  41,  52. 

*  Sheffield  v.  Harris,  101  Ala.  564  ;  14  So.  Rep.  357. 


22  EMPLOYERS'  LIABILITY  ACTS. 

ries,  and  that  a  judgment  by  consent  of  the  next  friend 
is  not  binding  on  the  minor,  and  is  no  bar  to  another 
action  for  the  same  injury.1 

In  Massachusetts  the  contrary  rule  prevails,  that  a 
judgment  entered  by  consent  of  the  next  friend  con- 
cludes the  minor,  and  bars  another  action  by  him  on 
the  same  cause  of  action,  although  a  settlement  made 
out  of  court  by  the  next  friend,  and  not  approved  by 
the  court,  does  not  conclude  the  minor,  and  is  not  ad- 
missible against  the  minor  either  in  bar  or  on  the  ques- 
tion of  damages.2  The  method  now  generally  practised 
is  to  submit  the  agreement  for  judgment,  signed  by  the 
parties,  to  the  court  for  approval. 

As  to  the  power  of  a  next  friend  to  compromise  a 
suit,  see,  also,  the  cases  cited  below.3 

§  16.  /Suits  in  Federal  Courts  under  State  Statute. 
Suits  to  enforce  a  right  given  by  the  Employers'  Lia- 
bility Act  may  be  brought  in  the  federal  courts  as  well 
as  in  the  state  courts.4  The  fact  that  the  right  is  un- 
known to  the  common  law,  and  is  created  only  by  state 
statute,  does  not  prevent  the  federal  courts  from  trying 
the  case.  Even  if  the  statute  declares  that  the  action 
shall  be  brought  only  in  a  state  court,  this  does  not  oust 
the  jurisdiction  of  the  federal  courts.5  Nor  is  it  neces- 

1  Tennessee  Coal  Co.  v.  Hayes,  97  Ala.  201. 

2  Tripp  v.  Gifford,  155  Mass.  108. 

8  Clark  v.  Grout,  34  So.  Car.  417  ;  Crotty  v.  Eagle,  35  W.  Va.  143  ; 
Baltimore  &  Ohio  Ry.  v.  Fitzpatrick,  36  Md.  619  ;  Kingsbury  v.  Buck- 
ner,  134  U.  S.  650  ;  Tucker  v.  Dabbs,  12  Heisk.  (Tenn.)  18  ;  Miles  v. 
Kaigler,  10  Yerger  (Tenn.),  10 ;  Smith  v.  Redus,  9  Ala.  99 ;  Isaacs  v. 
Boyd,  5  Porter  (Ala.),  388. 

*  Griffin  v.  Overman  Wheel  Co.,  61  Fed.  Rep.  568. 

5  Railway  Co.  v.  Whitton,  13  Wall.  270. 


GENERAL   PRINCIPLES.  23 

sary  that  the  federal  court  selected  for  action  should  sit 
within  the  State  whose  statute  confers  the  right  of  ac- 
tion. As  the  action  is  of  a  transitory  nature,  the  right 
may  be  enforced  in  any  circuit  court  of  the  United 
States  having  jurisdiction  of  the  subject-matter  and  of 
the  parties.1 

In  some  cases  the  federal  courts  are  more  favorable 
to  the  plaintiff  than  the  state  courts.  Thus,  in  those 
courts  the  burden  is  upon  the  defendant  to  prove  that 
the  plaintiff  was  not  in  the  exercise  of  due  care  at  the 
time  of  the  injury,2  while  in  the  state  courts  of  Massa- 
chusetts,3 and  some  other  States,4  the  burden  is  upon 
the  plaintiff  to  show  that  he  was  in  the  exercise  of  due 
care  at  that  time.  Hence,  when  the  plaintiff  fears  the 
defence  of  contributory  negligence  or  want  of  due  care, 
he  is  more  likely  to  recover  a  verdict  in  the  federal 
court  than  in  any  state  court  where  this  rule  prevails. 
Although  the  strictness  of  this  rule  has  been  relaxed 
somewhat  in  Massachusetts  in  the  case  of  the  killing 
of  an  employee,  when  all  the  circumstances  attending 
the  injury  are  in  evidence  and  they  fail  to  show  any 
fault  on  the  part  of  the  deceased,  still  that  the  federal 
rule  is  more  advantageous  for  the  plaintiff  is  shown  by 
comparing  the  case  of  Griffin  v.  Overman  Wheel  Co. 
61  Fed.  Rep.  568,  withTyndale  v.  Old  Colony  Ry.,  156 

1  Dennick  v.  Railroad  Co.,  103  U.  S.  11  ;  Northern  Pacific  Ry.  v.  Bab- 
cock,  154  U.  S.  190. 

2  Railroad  Co.  v.  Gladmon,  15  Wall.  401  ;  Texas  &  Pacific  Ry.  v. 
Volk,  151  U.  S.  73,  77. 

8  Shea  17.  Boston  &  Maine  Ry.,  154  Mass.  31  ;  Browne  v.  New  York 
&c.  Ry.,  158  Mass.  247  ;  Murphy  v.  Deane,  101  Mass.  455. 

*  fcvansville  Ry.  v.  Hiatt,  17  Ind.  102  ;  Park  v.  O'Brien,  23  Conn.  339  ; 
Merrill  v.  Hampden,  26  Me.  234  ;  Cordell  v.  N.  Y.  Central  Ry.,  75  N.  Y. 
330  ;  Dyer  v.  Talcott,  .16  111.  300. 


24  EMPLOYERS'  LIABILITY  ACTS. 

Mass.  503 ;  Irwin  v.  Alley,  158  Mass.  249  ;  Chandler  v. 
New  York  &c.  Ry.,  159  Mass.  589  j  and  Felt  v.  Boston 
&  Maine  Ry.,  161  Mass.  311. 

§  17.  Same.    Adopt  Construction  given  to  State  Stat- 
ute by  State  Court. 

When  an  action  for  personal  injuries  is  brought  in  a 
federal  court  sitting  in  the  State  where  the  injury  was 
received  and  under  its  statute,  the  federal  court  is  bound 
to  follow  the  construction  given  to  that  statute  by  the 
highest  state  court.  This  is  not  a  question  of  general 
law  or  jurisprudence,  but  merely  of  local  law,  and  §  721 
of  the  U.  S.  Revised  Statutes  applies  to  the  case.1 

Even  when  the  federal  court  sits  in  a  State  other 
than  that  of  the  injury,  the  construction  given  to  a 
statute  of  the  State  of  injury  by  its  highest  court  is 
binding  upon  the  federal  courts.  A  brakeman  was  in- 
jured in  North  Dakpta  through  the  negligence  of  the 
conductor.  Action  was  brought  in  a  federal  court  sit- 
ting in  Minnesota.  Under  a  statute  of  North  Dakota, 
as  construed  by  its  highest  court,  the  common  employer 
was  not  liable  to  the  brakeman  for  the  negligence  of 
the  conductor.  The  United  States  Circuit  Court  of 
Appeals  for  the  eighth  circuit  held  that  this  construc- 
tion was  binding  upon  the  federal  court  and  prevented 
a  recovery.2 

1  Bucher  v.  Cheshire  Ry.,  125  U.  S.  555  ;  Detroit  v.  Osborne,  135  U.  S. 
492  ;  Chicago  &c.  Ry.  v.  Stahley,  62  Fed.  Rep.  363. 

This  statute  provides  that  "  the  laws  of  the  several  States,  except  when 
the  Constitution,  treaties,  or  statutes  of  the  United  States  otherwise  re- 
quire or  provide,  shall  be  regarded  as  rules  of  decision  in  trials  at  com- 
mon law,  in  the  courts  of  the  United  States,  in  cases  where  they  apply." 
1  Stats.  92. 

2  Northern  Pacific  Ry.  v.  Hogan,  63  Fed.  Rep.  102. 


GENERAL    PRINCIPLES.  25 

When,  however,  the  action  is  brought  in  a  federal 
court  sitting  in  a  State  other  than  that  in  which  the 
injury  was  received,  and  under  a  statute  of  the  State 
of  injury,  the  federal  court  is  not  bound  to  follow  the 
construction  given  to  that  statute  by  the  courts  of  the 
State  in  which  it  sits,  but  may  enforce  the  statute  of 
such  other  State,  although  the  local  state  courts  have 
refused  to  enforce  it.1 

§  18.  Same.     Enforcing  Statutes  of  Other  States. 

In  the  matter  of  enforcing  a  right  of  action  given  by 
a  statute  of  another  State  for  a  personal  injury  received 
there,  the  federal  courts  construe  the  statute  more 
favorably  to  the  plaintiff  than  do  the  state  courts  of 
Massachusetts  and  of  some  other  States.  The  recog- 
nition of  a  statute  of  another  State  depends  upon  the 
principles  of  interstate  comity,  which  principles  have 
always  been  cherished  by  the  federal  courts,2  and  some- 
times disregarded  by  the  state  courts.  Thus,  in  Den- 
nick  v.  Railroad  Co.,  103  U.  S.  11,  it  was  held  that  an 
administrator  appointed  in  New  York  of  a  person  killed 
in  New  Jersey  through  defendant's  negligence  could 
maintain  an  action  in  the  federal  court  sitting  in  New 
York  under  a  statute  of  New  Jersey  which  made  any 
person  or  corporation  whose  wrongful  act,  neglect,  or 
default  should  cause  the  death  of  any  person  liable  to 
an  action  by  his  administrator  for  the  benefit  of  his 
widow  and  next  of  kin.  In  several  state  courts,  how- 
ever, like  statutes  of  other  States  have  been  refused 
recognition  and  enforcement.3 

1  Texas  &  Pacific  Ry.  v.  Cox,  145  U.  S.  593  ;  post,  §  18. 

2  Bank  of  Augusta  v.  Earle,  13  Peters,  519. 

8  Richardson  v.  New  York  Central  Ry.,   98  Mass.   85  ;   Woodard   t;. 


26  EMPLOYERS'  LIABILITY  ACTS. 

Again,  the  question  of  whether  a  statute  of  another 
State  shall  be  enforced  is  a  question  of  general  law  or 
jurisprudence ;  and  therefore  the  federal  courts  are  not 
bound  to  follow  the  construction  given  to  such  statute 
by  the  courts  of  the  State  in  which  they  sit.  Hence  a 
decision  by  a  state  court,  that  no  action  can  be  main- 
tained under  a  statute  of  another  State,  is  not  binding: 

*  c5 

upon  a  federal  court  sitting  in  the  first  State  in  another 
like  case.  In  Texas  &  Pacific  Ry.  v.  Cox,  145  U.  S. 
593,  a  freight  conductor  in  the  employ  of  the  railroad 
company  was  killed  in  Louisiana  through  the  negligence 
of  the  company.  His  widow  brought  this  action  in 
the  United  States  Circuit  Court  for  Texas  to  recover 
damages  under  the  Louisiana  statute.  Several  deci- 
sions of  the  Supreme  Court  of  Texas  were  cited,1  tend- 
ing to  support  the  view  that  an  action  could  not  be 
maintained  in  Texas  on  a  statute  of  another  State  like 
that  of  Louisiana.  But  the  Supreme  Court  of  the 
United  States  refused  to  be  bound  by  the  Texas  deci- 
sions upon  the  ground  that  the  question  was  one  of 
"  general  law  "  (page  605),  and  gave  judgment  for  the 
plaintiff  on  the  authority  of  Dennick  v.  Railroad  Co., 
103  U.  S.  11.  In  Huntington  v.  Attrill,  146  U.  S. 
657,  683,  the  Cox  case  was  cited  by  the  court  in  sup- 
port of  the  proposition  that,  "  If  the  suit  is  brought  in 
a  circuit  court  of  the  United  States,  it  is  one  of  those 
questions  of  general  jurisprudence  which  that  court 
must  decide  for  itself,  uncontrolled  by  local  decisions." 2 

Michigan  Southern  Ry.,  10  Ohio  St.  121  ;  McCarthy  v.  Chicago  &c. 
Ry.,  18  Kans.  46  ;  Taylor  v.  Pennsylvania  Ry.,  78  Ky.  348. 

1  Willis  v.  Missouri  Pacific  Ry.,  61  Texas,  432  ;  Texas  &  Pacific  Ry.  ». 
Richards,  68  Texas,  375  ;  St.  Louis  &c.  Ry.  v.  McCormick,  71  Texas,  660. 

2  See,  also,  Northern  Pacific  Ry.  v.  Babcock,  154  U.  S.  190,  198. 


GENERAL   PRINCIPLES.  27 

§  19.  Federal  Courts  are  not  bound  by  State  Decisions 
as  to  who  are  Fellow-Servants. 

In  the  absence  of  state  legislation,  the  question 
whether  the  engineer  and  fireman  running  a  locomo- 
tive engine  without  a  train  attached  are  fellow-servants, 
so  as  to  relieve  the  railroad  company  from  liability  to 
the  fireman  by  reason  of  the  engineer's  negligence,  is 
not  a  question  of  local  law  upon  which  the  federal 
courts  are  bound  to  follow  the  state  decisions,  but  is 
one  of  general  law  upon  which  the  federal  courts  may 
exercise  their  independent  judgment,  uncontrolled  by 
local  decisions.1  In  delivering  the  court's  opinion  in 
the  first  case  cited  below,  Mr.  Justice  Brewer  says  on 
page  378 :  "  But  passing  beyond  the  matter  of  authori- 
ties, the  question  is  essentially  one  of  general  law.  It 
does  not  depend  upon  any  statute ;  it  does  not  spring 
from  any  local  usage  or  custom ;  there  is  in  it  no  rule 
of  property,  but  it  rests  upon  those  considerations  of 
right  and  justice  which  have  been  gathered  into  the 
great  body  of  the  rules  and  principles  known  as  the 
'  common  law.'  There  is  no  question  as  to  the  power 
of  the  States  to  legislate  and  change  the  rules  of  the 
common  law  in  this  respect  as  in  others ;  but  in  the  ab- 
sence of  such  legislation  the  question  is  one  determina- 
ble  only  by  the  general  principles  of  that  law.  Further 
than  that,  it  is  a  question  in  which  the  nation  as  a 
whole  is  interested.  It  enters  into  the  commerce  of  the 
country.  'Commerce  between  the  States  is  a  matter  of 
national  regulation,  and  to  establish  it  as  such  was  one 

1  Baltimore  &  Ohio  Ry.  v.  Baugh,  149  U.  S.  368  ;  Hough  v.  Railway 
Co.,  100  U.  S.  213,  226. 


28  EMPLOYERS'  LIABILITY  ACTS. 

of  the  principal  causes  which  led  to  the  adoption  of  our 
Constitution." 

§  20.  Suit  in  Admiralty  Court  for  Maritime  Tort. 

Whether  or  not  an  admiralty  court  sitting  within  a 
State  where  an  injury  occurs  will  enforce  a  new  right  of 
action,  given  by  an  Employers'  Liability  Act  of  that 
State,  has  not  been  decided. 

It  has  been  held,  however,  that  the  admiralty  courts 
will  enforce  a  state  statute  giving  a  right  of  action  for 
death  by  negligence.  If  the  negligence  is  a  maritime 
tort,  the  suit  may  be  maintained  either  in  rem  or  in 
personam.1 

1  Holmes  v.  Oregon  &c.  Ry.,  5  Fed.  Rep.  75  ;  The  Clatsop  Chief,  8 
Fed.  Rep.  163  ;  The  E.  B.  Ward,  Jr.,  17  Fed.  Rep.  456.  Contra,  as  to 
suit  in  rem,  The  Vera  Cruz,  10  App.  Cases,  59. 


CHAPTER  II. 


DEFECTS  IN   THE  CONDITION  OF  THE  WAYS,  WORKS,  ETC. 


Section 

21.  Statutory    provisions   and   pre- 

liminary remarks. 

22.  General  effect  of  this  clause  in 

Massachusetts. 

23.  General  effect  of  this  clause  in 

Alabama. 

24.  Actual   or   presumptive  know- 

ledge of  defect  by  defendant 
or  his  proper  officers. 

25.  Employee's  knowledge  of  defect 

or  negligence. 

26.  Defect  must  be  proximate  cause 

of  injury. 


27.  Accidental  and   temporary  ob- 

struction. 

28.  Proper  appliances  within  reach. 

29.  Latent  defect. 

30.  Hidden    danger    in    the  ways, 

works,  or  machinery. 

31.  Injury    not    caused   by   defect 

alleged. 

32.  Machinery  need  not  be  the  safest 

or  best  known  in  use. 

33.  Absence  of  guards,  cleats,  rails, 

etc. 

34.  Same. 

35.  Miscellaneous  cases. 


§  21.  Statutory  Provisions  and  Preliminary  Remarks. 

SECTION  1,  clause  1,  of  the.  Massachusetts  act  gives  a 
right  of  action  to  an  employee  who  receives  personal  in- 
jury "  by  reason  of  any  defect  in  the  condition  of  the 
ways,  works,  or  machinery  connected  with  or  used  in 
the  business  of  the  employer,"  provided  that  the  defec- 
tive condition  "  arose  from,  or  had  not  been  discovered 
or  remedied  owing  to,  the  negligence  of  the  employer, 
or  of  any  person  in  the  service  of  the  employer  and  en- 
trusted by  him  with  the  duty  of  seeing  that  the  ways, 
works,  or  machinery  were  in  proper  condition." 

The  Alabama  statute  has  a  provision  to  the  same 
effect,  under  which  it  has  been  decided  that  the  mere 


30  EMPLOYEES'  LIABILITY  ACTS. 

fact  that  an  employee  is  injured  by  reason  of  a  defect 
in  the  condition  of  the  employer's  ways,  works,  machin- 
ery, or  plant  does  not  render  the  employer  liable  :  it 
must  further  appear  that  the  defect  in  the  condition 
"  arose  from,  or  had  not  been  discovered  or  remedied 
owing  to,  the  negligence  of  the  master  or  employer,  or 
of  some  other  person  in  the  service  of  the  master  or 
employer,  and  entrusted  by  him  with  the  duty  of  see- 
ing that  the  ways,  works,  machinery,  or  plant  were  in 
proper  condition."  * 

It  is,  however,  an  essential  part  of  the  plaintiff's  case 
to  prove  a  defect  in  the  condition  of  such  ways,  works, 
machinery,  or  plant ;  and  if  he  fails  to  do  so,  he  cannot 
recover  under  this  clause  of  the  statute.2  The  question 
considered  in  this  chapter  is,  What  is  a  "  defect  in  the 
condition  "  within  the  meaning  of  this  clause  ? 

§  22.  General  Effect  of  this  Clause  in  Massachusetts. 
This  provision  made  very  little  if  any  enlargement  to 
the  rights  of  an  employee  as  they  existed  at  common 
law  in  Massachusetts.  It  is  chiefly  a  legislative  declara- 
tion of  common-law  principles.  In  Ryalls  v.  Mechanics' 
Mills,  150  Mass.  190,  194,  Mr.  Justice  Holmes,  speak- 
ing for  the  court,  says :  — 

1  Alabama  Code,   §   2590  ;  Memphis   &c.  Ry.  v.  Askew,  90  Ala.  5 ; 
Louisville  &c.  Ry.  v.  Coulton,  86  Ala.  129  ;  Louisville  &c.  Ry.  v.  Davis, 
91  Ala.  487. 

2  Louisville  &c.  Ry.  v.  Binion.  98  Ala.  570,  575.     Under  the  clauses 
relating  to  the  negligence  of  a  superintendent,  or  of  a  person  in  charge  or 
control  of  a  signal,  switch,  locomotive  engine,  or  train,  it  is  not  necessary 
to  prove  a  defect  in  the  condition  of  the  ways,  works,  machinery,  or  plant. 
A  superintendent's  negligence  may  also  consist  in  allowing  a  defect  to 

'arise  or  to  continue  in  existence.  Seaboard  Manuf.  Co.  v.  Woodson,  94 
Ala.  143. 


DEFECTS   IN   CONDITION   OF   WAYS,   WORKS,    ETC.      31 

"  In  1887  [before  the  passage  of  the  act],  it  was 
settled  law  in  Massachusetts  that  masters  were  per- 
sonally bound  to  see  that  reasonable  care  was  used  to 
provide  reasonably  safe  and  proper  machinery,  so  that, 
if  the  duty  was  entrusted  to  another  and  was  not  per- 
formed, the  fact  that  the  proximate  cause  of  the  damage 
was  the  negligence  of  a  fellow-servant  was  no  defence.1 
The  rule  in  Wilson  v.  Merry,  L.  R.  1  H.  L.  Sc.  326, 
practically,  if  not  in  terms,  had  been  modified  very  much 
in  favor  of  servants." 

In  Spicer  v.  South  Boston  Iron  Co.,  138  Mass.  426, 
the  plaintiff,  while  in  the  employ  of  the  defendant,  was 
injured  by  the  breaking  of  an  iron  hook,  and  there 
was  evidence  that  the  hook  had  a  visible  flaw  or  crack 
in  it,  which  a  careful  inspection  would  have  revealed. 
It  was  held  in  an  action  at  common  law  that  there  was 
sufficient  evidence  of  negligence  on  the  part  of  the 
defendant  to  support  a  verdict  for  the  plaintiff. 

This  duty  of  the  employer  was  not,  by  the  common 
law  of  Massachusetts,  confined  strictly  to  machinery, 
but  also  extended  to  all  appliances  and  instrumentalities 
connected  with  his  business.  In  Snow  v.  Housatonic 
Ry.,  8  Allen,  441,  it  was  held  that  a  railroad  corpora- 
tion was  liable  at  common  law  to  one  of  its  employees 
for  an  injury  caused  by  a  want  of  repair  in  the  roadbed 
of  the  railroad.  The  employer  could  not  escape  liability 
by  delegating  this  duty  to  some  one  else,  and  was  liable 
for  its  non-performance  to  every  employee  who  was  not 
himself  negligent. 

1  Citing  Oilman  v.  Eastern  Ry.,  13  Allen,  433,  440  ;  and  Lawless  v. 
Connecticut  River  Ry.,  136  Mass.  1.     See,  also,  Toy  v.  United  States  Car- 
tridge Co.,  159  Mass.  313. 

2  Citing  Rogers  v.  Ludlow  Manuf.  Co.,  144  Mass.  198,  202. 


32  EMPLOYEES'  LIABILITY  ACTS. 

So,  a  railroad  company  is  liable  to  a  brakeman  in  its 
employ  for  an  injury  caused  by  a  worm-eaten  and  rotten 
stake  used  to  hold  railroad  ties  upon  a  platform  car,  and 
to  facilitate  the  passage  of  brakemen  from  car  to  car ; 
and  the  facts  that  the  stake  was  prepared  by  fellow- 
workmen,  and  that  the  defendant  supplied  sufficient 
good  lumber  for  the  purpose,  will  not  relieve  the  defend- 
ant from  liability  at  common  law.1 

The  employer  was  also  liable  for  negligence  in  failing 
to  provide  proper  and  competent  co-employees  to  carry 
on  his  business.  Thus,  in  Gilman  v.  Eastern  Ry.,  13 
AUen,  433,  a  railroad  company  was  held  liable  to  one  of 
its  car-repairers  for  retaining  in  its  employ  an  habitual 
drunkard  as  a  switchman,  whose  negligence  in  failing 
to  properly  adjust  a  switch  caused  the  plaintiff's  injury, 
after  it  knew,  or  by  the  use  of  due  care  might  have 
known,  that  he  was  a  drunkard. 

The  above  rules  of  the  common  law  are  still  in  force 
in  Massachusetts,  for  the  Employers'  Liability  Act  does 
not  repeal  or  restrict  them,  but  on  the  contrary  it 
enlarges  and  increases  in  certain  directions  the  rights 
of  employees  and  the  liabilities  of  employers. 

§  23.  General  Effect  of  this  Clause  in  Alabama. 

In  Wilson  v.  Louisville  &c.  Ry.,  85  Ala.  269,  272, 
the  court  says  by  Mr.  Justice  Clopton  :  "  Under  the 
statute,  negligence  in  causing  or  failing  to  discover  or 
remedy  a  defect  is  essential  to  liability.  It  does  not 
undertake  to  define  what  shall  constitute  a  defect  or 
negligence  in  regard  to  the  condition  of  the  ways, 
works,  machinery,  or  plant.  To  determine  these  mat- 

1  Mclntyre  v.  Boston  &  Maine  Ry.,  163  Mass.  189. 


DEFECTS   IN   CONDITION   OF   WAYS,   WORKS,    ETC.      33 

ters,  reference  must  be  made  to  the  principles  of  the 
common  law.  Therefore,  whether  the  plaintiff's  right 
to  recovery  is  based  on  the  statutory  or  common-law 
liability  of  an  employer,  the  measure  of  defendant's 
duty  to  plaintiff  is  essentially  the  same." 

§  24.  Actual  or  Presumptive  Knowledge  of  Defect 
by  Defendant  or  his  Proper  Officers. 

At  common  law,  an  employee  cannot  maintain  an 
action  against  his  employer  for  an  injury  caused  by  a 
defect  in  the  ways,  works,  machinery,  or  plant,  unless 
the  employer  knew  of  the  defect,  or  by  the  exercise  of 
reasonable  care  might  have  known  of  the  defect  in  time 
to  remedy  it  before  the  accident.1  But  the  circum- 
stances may  be  such  as  to  raise  a  presumption  of  know- 
ledge on  the  part  of  the  employer,  and  to  relieve  the 
plaintiff  of  the  obligation  of  proving  actual  know- 
ledge ; 2  or  they  may  be  such  as  to  charge  the  employer 
with  negligence  in  failing  to  discover  and  remedy  the 
defect.3 

A  like  rule  prevails  in  actions  under  the  Employers' 
Liability  Acts. 

It  has  been  held  under  the  Alabama  act  that  mere 
knowledge  of  a  defect  by  the  employer,  or  by  the 
person  entrusted  with  the  duty  of  seeing  that  the  ways, 

1  Reed  v.  Boston  &  Albany  Ry.,  164  Mass.  129;  Nason  v.  West,  78  Me. 
253  ;  Griffiths  v.  London  &c.  Docks  Co.,  12  Q.  B.  D.  495  ;  8.  c.,  13  Q.  B.  D. 
259  ;  Hayden  v.  Smithville  Manuf.  Co.,  29  Conn.  548;  Carruthers  v.  Chi- 
cago &c.  Ry.,  55  Kans.  600 ;  40  Pac.  Rep.  915  ;  Atchison  &c.  Ry.  v. 
Wagner,  33  Kans.  660  ;  Wright  v.  New  York  Central  Ry.,  25  N.  Y. 
562,566. 

2  Guthrie  v.  Maine  Central  Ry.,  81  Me.  572. 

3  Moynihan  ».  Hills  Co.,  146  Mass.  586  ;  Toy  v.  United  States  Car- 
tridge Co.,  159  Mass.  313  ;  Cowan  v.  Chicago  &c.  Ry.,  80  Wis.  284. 


34  EMPLOYERS'  LIABILITY  ACTS. 

works,  etc.,  were  in  proper  condition,  will  not  render 
the  employer  liable  for  an  injury  caused  by  such  de- 
fect ;  it  must  further  appear  that  a  reasonable  time  had 
elapsed  after  the  discovery  of  the  defect  and  before  the 
injury  to  make  repairs,  or  to  remedy  the  defect.  Thus, 
in  Seaboard  Manuf.  Co.  v.  Woodson,  94  Ala.  143  ;  s.  c., 
98  Ala.  378,  a  fireman,  while  oiling  and  cleaning  a 
locomotive  engine,  was  injured  by  a  leaky  throttle- valve 
of  the  engine,  which  caused  it  to  start  up  while  he  was 
underneath  it.  One  count  of  his  declaration  alleged 
that  this  defect  was  known  to  the  superior  officers  of 
the  plaintiff,  and  was  known  to  the  defendant,  but 
failed  to  state  how  long  before  the  injury  the  defect 
had  been  known  to  the  defendant  or  to  the  plaintiff's 
superiors.  It  was  held  on  demurrer  that  this  count 
did  not  state  a  cause  of  action,  for  the  reasons  above 
stated.  In  delivering  the  opinion,  Mr.  Justice  Walker 
says,  on  page  147  :  "  Unless  there  had  been  a  rea- 
sonable opportunity  to  effect  a  remedy,  it  could  not 
be  said  that  the  failure  to  do  so  was  negligent.  The 
defendant  must  have  had  sufficient  time  to  remedy  the 
defect  after  its  discovery  before  it  could  be  chargeable 
with  negligence  in  failing  to  effect  such  remedy.  Mere 
knowledge,  without  the  opportunity  to  act  on  it,  would 
not  constitute  negligence."  l 

Under  a  like  clause  in  the  English  act,  it  has  been 
held  that  the  only  defects  for  which  an  employer  is  lia- 
ble are  such  as  imply  negligence  on  his  part,  or  of  some 
one  in  his  employ  entrusted  by  him  with  the  duty  of 
seeing  that  the  ways,  works,  machinery,  or  plant  are  in 
proper  condition.  Therefore,  where  the  plaintiff,  while 

1  See,  also,  United  States  Rolling  Stock  Co.  v.  Weir,  97  Ala.  396. 


DEFECTS    IN   CONDITION    OF    WATS,    WORKS,    ETC.      35 

working  upon  a  carding-machine,  had  his  thumb  cut  off 
by  its  slipping  through  a  hole  in  the  disk  of  the  wheel, 
which  kind  of  wheel  was  in  common  use,  though  there 
was  another  kind  without  holes,  it  was  decided  by  the 
court  of  appeal,  Lord  Esher,  M.  R.,  dissenting,  that 
the  plaintiff  could  not  recover,  as  the  defect  did  not 
imply  negligence.1 

§  25.  Employee's  Knowledge  of  Defect  or  Negligence. 

The  fifth  section  of  the  Massachusetts  act  declares 
that- 

"  An  employee  or  his  legal  representatives  shall  not 
be  entitled  under  this  act  to  any  right  of  compensa- 
tion or  remedy  against  his  employer  in  any  case  where 
such  employee  knew  of  the  defect  or  negligence  which 
caused  the  injury,  and  failed  within  a  reasonable  time 
to  give,  or  cause  to  be  given,  information  thereof  to  the 
employer,  or  to  some  person  superior  to  himself  in  the 
service  of  the  employer  who  had  entrusted  to  him  some 
general  superintendence." 

The  Alabama  and  English  acts  contain  the  above 
provision  in  substance,  with  the  following  added  at  the 
end  thereof  :  "  unless  he  [the  employee]  was  aware  that 
the  master  or  employer,  or  such  superior,  already  knew 
of  such  defect  or  negligence." 

This  section  does  not  create  a  condition  precedent, 
like  that  of  due  notice,  which  the  plaintiff  must  allege 
and  prove  has  been  fulfilled.  Knowledge  and  failure 
to  inform  are  matters  of  defence,  and  the  burden  is 
upon  the  defendant  to  show  them.2 

1  Walsh  v.  Whiteley,  21  Q.  B.  D.  371. 

2  Connolly  v.  Waltham,  156  Mass.  368. 


36  EMPLOYERS'  LIABILITY  ACTS. 

The  same  rule  prevails  under  the  English  act.1 

Under  the  Alabama  act  the  plaintiff  is  not  obliged  to 
allege  or  prove  that  he  was  aware  that  the  defendant 
had  no  knowledge  of  the  defect,  and  that  the  plaintiff, 
while  having  knowledge  thereof  himself,  failed  to  com- 
municate the  fact  to  the  defendant  or  to  some  superior 
employee.  This  is  purely  matter  of  defence,  relating 
to  contributory  negligence  of  the  plaintiff,  and  the 
defendant  must  show  it.2 

The  rule  of  the  common  law  was  that  the  employee's 
knowledge  of  the  defect  causing  the  injury  was  not,  as 
matter  of  law,  conclusive  evidence  of  such  want  of  due 
care  as  would  prevent  a  recovery  from  the  employer. 
This  was  a  question  for  the  jury  to  decide  on  all  the 
facts  and  circumstances  of  the  case.  If  he  informed 
the  proper  officer  of  the  defect,  and  was  told  that  it 
would  be  remedied,  his  subsequent  use  of  the  appliance 
within  a  reasonable  time  in  the  defective  condition  did 
not  constitute  negligence  on  his  part,  or  an  assumption 
of  the  risk,  which  would  prevent  his  recovery.3 

In  Alabama,  however,  it  was  held  at  common  law 

1  Weblin  v.  Ballard,  17  Q.  B.  D.  122,  125. 

2  Columbus  &c.  Ry.  v.  Bradford,  86  Ala.  574. 

8  Snow  v.  Housatonie  Ry.,  8  Allen  (Mass.),  441 ;  Ford  v.  Fitchburg  Ry., 
110  Mass.  240  ;  Hough  v.  Railway  Co.,  100  U.  S.  213 ;  Laning  v.  New 
York  Central  Ry.,  49  N.  Y.  521  ;  Patterson  v.  Pittsburg  &c.  Ry.,  76  Pa. 
St.  389  ;  Conroy  v.  Vulcan  Iron  Works,  60  Mo.  35  ;  Flynn  v.  Kansas 
City  &c.  Ry.,  78  Mo.  195;  Indianapolis  &c.  Ry.  v.  Ott,  11  Ind.  App.  564; 
38  N.  E.  Rep.  842 ;  Clarke  ».  Holmes,  7  H.  &  N.  937  ;  Union  Manuf. 
Co.  v.  Morrissey,  40  Ohio  St.  148  ;  Missouri  Furnace  Co.  v.  Abend,  107 
111.  44  ;  Southern  Kansas  Ry.  v.  Croker,  41  Kans.  747  ;  Greene  v.  Minne- 
apolis &c.  Ry.,  31  Minn.  248.  For  qualifying  cases,  see  Counsell  v.  Hall, 
145  Mass.  468  ;  Lewis  v.  New  York  &c.  Ry.,  153  Mass.  73  ;  Westcott  v. 
New  York  &c.  Ry.,  153  Mass.  460  ;  Levesque  v,  Jauson,  165  Mass.  16; 
42  N.  E.  Rep.  335. 


DEFECTS   IN   CONDITION   OF   WAYS,   WORKS,   ETC.      37 

that,  where  an  employee  knew  of  a  defect  and  remained 
at  work  after  the  employer  had  broken  his  promise  to 
remedy  the  defect,  he  was  guilty  of  contributory  neg- 
ligence as  matter  of  law,  and  could  not  recover  for  an 
injury  caused  by  such  defect.1 

In  an  early  case  under  the  statute,  it  was  held  that 
this  rule  was  abrogated  by  the  Employers'  Liability  Act 
of  1885,  on  the  ground  that  it  was  the  intention  of  the 
act  to  remedy  the  injustice  to  the  employee  of  requiring 
him  to  abandon  his  employment,  or  to  waive  his  rights 
against  an  employer  who  has  neglected  to  remedy  the 
defect  within  a  reasonable  time  after  notice  thereof.2 
In  a  later  case,  however,  this  decision  has  been  expressly 
overruled,  and  it  is  now  held  in  Alabama  that  contin- 
uance in  the  service  of  the  defendant  with  knowledge 
of  a  defect  in  the  condition  of  the  ways,  works,  or 
machinery,  though  it  exists  in  another  department  over 
which  the  employee  has  no  control,  constitutes  an  as- 
sumption of  the  risk  after  the  lapse  of  a  reasonable 
time  for  remedying  the  defect,  and  that  the  doctrine  of 
volenti  non  fit  injuria  applies,  and  prevents  a  recovery 
under  the  statute.3 

§  26.  Defect  must  be  Proximate  Cause  of  Injury. 

The  Alabama  decisions  hold  strictly  to  the  rule  that 
when  the  plaintiff's  cause  of  action  is  based  upon  a 
defect  in  the  condition  of  his  employer's  ways,  works, 
machinery,  or  plant,  it  must  appear  that  such  defect  was 
the  proximate  and  not  the  remote  cause  of  the  injury.4 

1  Eureka  Co.  v.  Bass,  81  Ala.  200. 

2  Mobile  &c.  Ry.  ».  Holborn,  84  Ala.  133. 
8  Birmingham  Ry.  v.  Allen,  99  Ala.  359. 

4  Tuck  v.  Louisville  &c.  Ry.,  98  Ala.  150  ;  Louisville  &c.  Ry.  v.  Binion, 
98  Ala.  570. 


38  EMPLOYERS'  LIABILITY  ACTS. 

In  Ashley  v.  Hart,  147  Mass.  573,  the  plaintiff  and 
one  K,  both  of  whom  were  journeymen  painters,  were 
employed  by  the  defendant  to  paint  another  person's 
house,  and  were  furnished  by  the  defendant  with  a 
hanging  stage.  K  omitted  to  fasten  his  end  of  the 
stage  securely,  and  while  it  was  being  lowered  into 
position  it  fell  and  injured  the  plaintiff.  In  an  action 
under  the  act  it  was  held  that  the  injury  was  not  caused 
by  a  defect  in  the  condition  of  the  stage,  but  by  the 
negligence  of  a  fellow-servant,  and  that  the  plaintiff 
could  not  recover. 

§  27.  Accidental  and  Temporary  Obstruction. 

The  Employers'  Liability  Act  does  not  make  the 
employer  liable  for  every  accidental  and  temporary 
obstruction  which  arises  in  the  progress  of  the  work. 
This  is  not  such  a  defect  in  the  condition  of  his  ways, 
works,  or  machinery  as  is  contemplated  by  the  statute. 
To  give  a  right  of  action,  the  defect  must  be  something 
in  the  permanent  or  quasi-permanent  condition  of  the 
ways,  works,  or  machinery.1 

In  O'Connor  v.  Neal,  ubi  supra,  a  pile  of  rubbish 
had  collected  on  the  floor  of  a  room  of  which  the  plain-- 
tiff, a  mason,  was  pointing  the  windows.  His  assistant, 
a  common  laborer,  placed  one  end  of  his  staging  on  this 
rubbish,  so  that  it  rested  unevenly  on  the  floor,  and 
when  the  plaintiff  stepped  upon  the  staging  it  tipped 
and  caused  him  to  fall.  In  delivering  the  court's  opin- 
ion, Morton,  J.,  says  :  — 

"  Under  the  Employers'  Liability  Act  (St.  1887,  ch. 

1  O'Connor  v.  Neal,  153  Mass.  281,  283  ;  McGiffin  v.  Palmer's  Ship- 
building Co.,  10  Q.  B.  D.  5  ;  May  v.  Whittier  Machine  Co.,  154  Mass.  29. 


DEFECTS   IN   CONDITION   OF   WAYS,   WORKS,   ETC.      39 

270),  the  presence  of  the  rubbish  on  the  floor  could  not 
be  said  to  constitute  a  defect  in  the  ways,  works,  or 
machinery.  It  was  merely  accidental  and  temporary, 
and  nothing  for  which  the  defendants  could  be  held 
liable."  Page  283. 

In  McGiffin  v.  Palmer's  Shipbuilding  Co.,  10  Q.  B.  D. 
5,  a  workman  was  killed  by  the  fall  of  a  heavy  ball 
which  had  been  negligently  left  in  the  roadway  of  the 
defendants'  iron  works.  It  was  held  that  this  was  a 
mere  temporary  obstruction  in  the  roadway,  and  was  not 
such  a  defect  in  the  condition  of  the  way  within  the 
meaning  of  the  statute,  because  it  was  not  of  a  perma- 
nent or  quasi-permanent  character.1 

In  May  v.  Whittier  Machine  Co.,  154  Mass.  29,  it 
was  held  that  a  pile  of  small  pieces  of  wood  about  a 
foot  high  and  eight  and  one  quarter  inches  wide,  which 
had  been  placed  in  a  space  between  machines  in  the 
defendant's  works  by  a  fellow-servant,  was  an  obstruc- 
tion of  "  an  accidental  and  temporary  character,"  and 
did  not  constitute  a  defect  in  the  condition  of  the  ways 
for  which  the  employer  was  liable. 

The  presence  of  a  stone  upon  a  staging  used  in  the 
construction  of  a  building  is  not  a  defect  in  the  condi- 
tion of  the  ways,  works,  or  machinery  within  the  mean- 
ing of  the  Massachusetts  act.2 

In  Alabama  it  was  held  in  an  early  case  that  a  pile 
of  coal  dumped  near  a  railroad  track,  at  the  request  of 
a  manufacturer  of  bricks,  may  constitute  a  defect  in  the 

1  In  this  case  it  was  also  held  that  if  the  person  who  left  the  ball  in  the 
roadway  was  the  defendant's  superintendent,  the  action  could  be  main- 
tained under  the  superintendence  clause  of  this  act.     See,  also,  Kansas 
City  &c.  Ry.  v.  Burton,  97  Ala.  240,  248. 

2  Carroll  v.  Willcutt,  163  Mass.  221. 


40  EMPLOYERS'  LIABILITY  ACTS. 

condition  of  the  "  ways  "  of  the  railroad  company  within 
the  meaning  of  the  statute.1  But  this  case  has  been 
expressly  overruled,  and  the  Alabama  rule  is  now  sub- 
stantially like  that  of  England  and  of  Massachusetts.2 
In  Kansas  City  &c.  Ry.  v.  Burton,  supra,  it  was  held 
that  a  railroad  car  left  on  one  track  in  dangerous  prox- 
imity to  another  track  is  not  a  defect  in  the  condi- 
tion of  the  "  ways  "  of  the  employer  within  the  statute, 
because  it  is  merely  a  temporary  obstruction,  and  not 
an  inherent  part  of  the  ways. 

§  28.  Proper  Appliances  within  Reach. 

An  employer  who  furnishes  proper  tools  or  appli- 
ances, within  convenient  reach,  is  not  liable  to  an 
employee  who  is  injured  while  using  a  defective  tool 
or  instrument.  In  supplying  proper  instruments  the 
employer  has  done  his  whole  duty,  and  is  not  liable 
either  at  common  law,3  or  under  this  clause  of  the 
statute.4 

In  Thyng  v.  Fitchburg  Ry.,  156  Mass.  13,  a  freight 
brakeman  was  thrown  off  a  train  and  killed  by  its 
breaking  apart,  caused  by  the  use  of  too  short  a  coup- 
ling-pin. The  defendant  always  kept  a  supply  of  pins 
in  the  yard  and  in  the  caboose  of  the  train,  and  a  proper 
one  could  have  been  found  in  either  of  those  places  by 

1  Highland  Avenue  Ry.  v.  Walters,  91  Ala.  435,  444. 

2  Kansas  City  &c.  Ry.  v.  Burton,  97  Ala.  240,  247. 

8  Carroll  v.  Western  Union  Tel.  Co.,  160  Mass.  152  ;  Johnson  v.  Boston 
Tow-Boat  Co.,  135  Mass.  209  ;  McKinnon  v.  Norcross,  148  Mass.  533. 

4  Thyng  v.  Fitchburg  Ry.,  156  Mass.  13  ;  Allen  v.  Smith  Iron  Co.,  160 
Mass.  557. 

If  a  superintendent  is  negligent  in  not  furnishing  proper  tools  or  appli- 
ances, the  employer  may  be  liable  under  another  clause  of  the  statute. 


DEFECTS    IN    CONDITION   OF   WAYS,    WORKS,    ETC.      41 

the  men  who  made  up  the  train.  In  an  action  under 
the  statute  by  the  brakeman's  administratrix,  it  was 
held  that  the  failure  to  select  a  proper  pin  under  the 
circumstances  was  not  an  act  for  which  the  defendant 
was  liable. 

In  Allen  v.  Smith  Iron  Co.,  160  Mass.  557,  a  furnace 
attendant  was  killed  by  the  breaking  of  a  wooden  lever 
held  by  a  fellow-workman,  which  allowed  the  iron  door 
to  the  furnace  to  swing  down  and  strike  the  deceased. 
There  was  no  evidence  that  the  wooden  lever  was 
defective,  except  that  it  broke,  and  had  been  in  use  for 
a  long  time.  The  employer  kept  a  stock  of  lumber  of 
the  proper  size  on  hand,  and  the  deceased  could  have 
obtained  a  new  lever  at  any  time  by  asking  for  it.  He 
was  the  person  in  immediate  charge  of  the  furnace.  In 
an  action  under  the  statute  by  the  administratrix,  it  was 
held  that  the  plaintiff  could  not  recover.  Holmes,  J., 
for  the  court,  says :  "  If  such  a  stick  can  be  said  to  be 
part  of  the  works  or  machinery,  the  defendant's  duty 
to  the  deceased  did  not  require  it  to  see  that  he  called 
for  a  proper  one.  It  was  enough  that  it  had  proper 
ones  within  convenient  reach."  Page  558. 

The  mere  fact  that  a  wooden  lever  or  other  instru- 
ment breaks  while  in  ordinary  use  is  not  sufficient  evi- 
dence of  a  "  defective  condition,"  within  the  Employ- 
ers' Liability  Act,  to  justify  a  verdict  for  the  plaintiff.1 

If  the  machinery  or  appliances  furnished  by  the 
employer  are  defective,  he  is  liable  to  an  employee, 
who  is  in  the  exercise  of  due  care,  for  an  injury  caused 
by  such  defective  machinery  or  appliances.2 

1  Allen  v.  Smith  Iron  Co.,  160  Mass.  557. 

2  Mooney  v.  Conn.  River  Co.,  154  Mass.  407. 


42  EMPLOYEES'  LIABILITY  ACTS. 

§  29.  Latent  Defect. 

The  doctrine  is  well  settled  at  common  law  that  an 
employer  is  not  liable  for  an  injury  caused  by  a  hidden 
or  latent  defect  which  was  not  discoverable  by  the  exer- 
cise of  reasonable  care  or  inspection  on  his  part.1 

A  like  rule  applies  in  actions  under  the  Employers' 
Liability  Act.2  In  Louisville  &c.  Ry.  v.  Campbell, 
97  Ala.  147,  a  brakeman  was  thrown  from  a  train 
while  in  motion  by  the  breaking  of  a  brake-rod.  The 
place  where  the  rod  broke  was  about  half  bright  and 
new  and  about  half  rusty  and  old,  showing  that  the 
defect  had  existed  for  some  time.  The  old  break  or 
crack  was  located  under  the  ratchet-wheel,  and  between 
it  and  the  bar  or  plate  of  iron  on  which  the  wheel 
rested,  and  could  not  have  been  seen  or  detected  with- 
out taking  out  the  rod-key  underneath,  and  raising  the 
rod  several  inches  until  the  point  where  the  crack  was 
rose  above  the  ratchet-wheel.  The  car  had  been  in- 
spected in  the  usual  manner  on  the  day  of  the  accident, 
and  during  the  run  of  one  hundred  and  fifty  miles 
just  prior  to  the  accident  the  plaintiff  had  himself 
applied  the  brake  eight  or  ten  times  without  noticing 
anything  wrong  about  it. 

In  an  action  under  the  Alabama  act,  it  was  held  that 

1  Louisville  &c.  Ry.  v.  Allen,  78  Ala.  494  ;  Holland  v.  Tennessee  Coal 
Co.,  91  Ala.  444  ;  Roughan  v.  Boston  Block  Co.,  161  Mass.  24  ;  Spicer  v. 
South  Boston  Iron  Co.,  138  Mass.  426,  430  ;  Ladd  v.  New  Bedford  Ry., 
119  Mass.  412,  413  ;  Ingalls  v.  Bills,  9  Met.  (Mass.)  1  ;  Ballou  v.  Chi- 
cago &c.  Ry.,  54  Wis.  257  ;  De  Graff  v.  New  York  Central  &c.  Ry.,  76 
N.  Y.  125. 

2  Louisville  &c.  Ry.  v.  Campbell,  97  Ala.  147  ;  Coffee  v.  New  York  &c. 
Ry.,  155  Mass.  21,  25  ;  Roberts  &  Wallace,  Employers'  Liability  (3d  ed.), 
p.  249. 


DEFECTS    IN    CONDITION    OF   WAYS,    WORKS,    ETC.      43 

the  defect  was  a  hidden  one  which  could  not  have 
been  discovered  or  remedied  with  reasonable  care  and 
inspection,  and  that  the  defendant  railroad  was  not 
liable. 

§  30.  Hidden  Danger  in  the  Ways,  Works,  or  Ma- 
chinery. 

A  concealed  or  hidden  danger,  in  the  nature  of  a 
trap,  in  the  defendant's  ways,  works,  or  machinery, 
constitutes  a  defect  in  their  condition,  within  the 
meaning  of  the  Employers'  Liability  Acts,  for  which  the 
employer  is  liable,  especially  to  young  or  inexperienced 
employees. 

In  McNamara  v.  Logan,  100  Ala.  187,  a  boy,  while 
driving  a  mining-car  down  grade  in  a  mine  *  entry  for 
the  first  time,  and  while  running  beside  the  car  and  at- 
tempting to  sprag  the  wheels,  as  he  had  been  ordered 
to  do,  was  crushed  between  the  wall  and  the  car  in  a 
narrow  space.  The  evidence  was  conflicting  as  to  the 
width  of  the  entry  at  this  point,  but  the  evidence  for 
the  plaintiff  tended  to  show  that  the  space  between  the 
wall  and  the  car  was  only  a  foot  and  a  half,  and  an 
expert  called  by  the  plaintiff  testified  that  the  rule  was 
to  have  this  space  three  feet  wide,  and  that  a  foot 
and  a  half  was  unsafe.  It  was  held  that  the  evidence 
warranted  a  finding  that  there  was  a  defect  in  the  ways 
of  the  defendant  within  the  meaning  of  the  Alabama 
statute. 

A  like  rule  prevails  at  common  law.  It  is  the  duty 
of  an  employer  to  use  reasonable  care  to  furnish  safe 
material  for  his  workmen.  If  he  fails  in  this  duty,  he 
is  liable  for  an  injury  caused  thereby ;  and  the  fact  that 


44  EMPLOYERS'  LIABILITY  ACTS. 

it  was  rendered  dangerous  by  the  act  of  the  plaintiff's 
fellow-servant  does  not  relieve  the  employer  from  re- 
sponsibility.1 

§  31.  Injury  not  caused  by  Defect  alleged. 

Even  if  there  be  a  defect  in  the  machinery,  yet,  if  the 
injury  was  not  caused  by  that  defect,  an  employee  can- 
not recover  of  the  master,  either  at  common  law 2  or 
under  the  Employers'  Liability  Act.3 

In  Brady  v.  Ludlow  Manuf.  Co.,  154  Mass.  468,  the 
plaintiff  was  injured  while  at  work  removing  waste  from 
his  carding-machine  in  defendant's  factory  by  a  gate 
swinging  to  and  pushing  him  upon  the  gears  of  the 
machine.  In  delivering  the  opinion  of  the  court,  Mr. 
Justice  Knowlton  says,  on  page  471 :  — 

"  The  defect  in  the  gate  was  that,  when  swung  to- 
gether, it  would  not  catch  on  the  fastening,  and,  if 
fastened,  would  not  stay  so,  but  would  stand  a  little 
way  open.  ...  But  the  defect  had  no  connection  with 
the  accident.  If  the  device  for  fastening  the  gate  had 
worked  perfectly,  it  would  have  made  no  difference  to 
the  plaintiff,  for  he  could  not  clean  the  gears  without 
keeping  the  gate  open.  There  was  no  evidence  that  he 
was  injured  by  reason  of  any  defect  or  want  of  repair  in 
the  defendant's  machinery  or  appliances." 

1  Ford  v.  Fitchburg  Ry.,  110  Mass.  240  ;  Holden  v.  Fitchburg  Ry.,  129 
Mass.  268  ;  Neven  v.  Sears,  155  Mass.  303. 

2  Sullivan  v.  Wamsutta  Mills,  155  Mass.  200. 
»  Brady  v.  Ludlow  Manuf.  Co.,  154  Mass.  468. 


DEFECTS   IN   CONDITION   OF   WAYS,    WORKS,    ETC.      45 

§  32.  Machinery   need  not   be   the  Safest   or  Best 
Known  in  Use. 

Neither  at  common  law  nor  under  the  Employers' 
Liability  Act  is  the  employer  required  to  furnish  the 
safest  or  the  best  known  machinery  in  use,  or  that  with 
the  latest  improvements  in  safety  appliances.1  He  per- 
forms his  duty  towards  his  employees  when  he  furnishes 
machinery  which  is  reasonably  safe  and  adapted  to  the 
purpose  for  which  it  is  used. 

In  Alabama  it  is  a  sufficient  fulfilment  of  the  em- 
ployer's duty  to  adopt  such  machinery  or  appliances  as 
are  in  ordinary  use  by  prudently  conducted  concerns 
engaged  in  like  business  and  surrounded  by  like  cir- 
cumstances. This  rule  applies  to.  actions  under  the 
Employers'  Liability  Act  as  well  as  to  actions  at  com- 
mon law.2 

§  33.  Absence  of  Guards,  Cleats,  Rails,  etc. 

Whether  the  absence  of  a  guard,  cleat,  rail,  or  other 
form  of  protection  from  danger,  constitutes  a  "  defect 
in  the  condition  "  of  the  employer's  ways,  works,  or 
machinery  within  the  meaning  of  the  statute,  depends 
upon  the  essential  nature  of  the  object  itself,  and  the 
use  for  which  it  was  intended. 

In  Gustafsen  v.  Washburn  &  Moen  Manuf.  Co.,  153 
Mass.  468,  a  workman,  while  assisting  in  pulling  a 
loaded  car  along  a  railroad  track  on  the  defendant's 

1  O'Maley  v.  South  Boston  Gas  Light  Co.,  158  Mass.  135,  137. 

2  Richmond  &c.  Ry.  v.  Bivins,  103  Ala.  000  ;  15  So.  Rep.  515,  517 ; 
Wilson  v.  Louisville  &c.  Ry.,  85  Ala.  269  ;  Georgia  Pacific  Ry.  v.  Propst, 
83  Ala.  518  ;  Louisville  &c.  Ry.  v.  Allen,  78  Ala.  494. 


4:6  EMPLOYERS'  LIABILITY  ACTS. 

premises,  fell  into  a  ditch  across  the  track,  and  was 
instantly  killed  by  the  car  falling  on  top  of  him.  The 
ditch  was  open  and  visible,  but  not  guarded,  and  had 
been  dug  that  morning  without  warning  to  the  em- 
ployees, who  had  been  accustomed  to  use  the  track, 
among  whom  was  the  deceased.  In  pulling  the  car, 
the  deceased  was  naturally  obliged  to  lean  forward  and 
bend  down  towards  the  track.  In  an  action  under 
the  Employers'  Liability  Act,  it  was  held  that,  in  the 
absence  of  direct  evidence  that  the  deceased  knew  of 
the  ditch,  the  plaintiff  was  entitled  to  go  to  the  jury  on 
the  question  as  to  whether  there  was  a  defect  in  the 
condition  of  the  ways  used  in  the  defendant's  business 
which  arose  from  its  negligence. 

The  absence  of  a  blocking  appliance  to  a  truck,  used 
to  transport  heavy  articles  from  one  part  of  a  floor  to 
another,  is  not  a  defect  in  the  condition  of  the  tool 
or  machine  within  the  meaning  of  the  Massachusetts 
act.1 

In  Graham  v.  Boston  &  Albany  Ry.,  156  Mass.  4,  a 
freight  brakeman,  while  engaged  in  uncoupling  cars  in 
motion,  had  his  hand  crushed  by  the  slipping  backwards 
of  an  oil-tank.  As  the  plaintiff  reached  over  with  his 
right  hand  to  pull  the  coupling-pin,  he  reached  back 
with  his  left  hand  for  a  grab-iron,  or  handle,  by  which 
to  steady  himself.  The  car  had  no  grab-iron,  and  the 
plaintiff  took  hold  of  the  end  block  on  the  tank-car,  to 
save  himself,  when  the  engineer  started  up  the  train, 
after  receiving  the  signal.  This  brought  his  left  hand 
near  the  oil-tank  ;  and  when  the  train  was  started  with 
a  jerk,  the  tank  shifted  and  crushed  his  hand.  In  an 

1  O'Keefe  v.  Brownell,  156  Mass.  131. 


DEFECTS   IN   CONDITION   OF   WATS,   WORKS,    ETC.      47 

action  under  the  statute,  it  was  held  that  whether  the 
oil-car  was  defective  for  want  of  a  grab-iron  was  a  ques- 
tion of  fact  for  the  jury  to  decide. 

§  34.  Same. 

The  absence  of  hooks  or  stays  to  a  ladder,  used  in 
an  engine-room  for  the  purpose  of  turning  on  steam  to 
a  donkey-engine  >  at  some  distance  above  the  floor,  may 
warrant  a  finding  that  there  was  a  defect  in  the  condi- 
tion of  the  plant  within  the  meaning  of  the  English  act 
of  1880.1 

In  an  action  under  the  Alabama  act  by  a  conductor 
against  a  dummy  railroad  company  for  personal  injuries 
caused  by  his  train  running  into  an  open  switch,  which 
switch  had  no  lock  or  other  fastening,  the  question 
whether  the  absence  of  a  lock  or  fastener  constituted  a 
defect  was  held  to  depend  upon  utility  and  the  usage 
and  custom  of  well-regulated  roads.2 

Under  the  Massachusetts  act,  the  absence  of  a  latch, 
or  lock,  to  a  shifting-bar  of  a  machine,  to  prevent  it 
from  starting  automatically  by  the  driving-belt  slipping 
from  the  loose  pulley  on  to  the  tight  pulley,  is  not  a 
defect  in  the  condition  of  the  employer's  machinery, 
even  if  an  expert  testifies  that  the  machine  was  danger- 
ous without  it,  and  a  verdict  should  be  ordered  for  the 
defendant  if  nothing  further  appears.3 

The  failure  of  a  building  contractor  to  shore  up  the 
wall  of  an  old  house  which  he  is  pulling  down  for 
the  owner,  whereby  the  wall  falls  upon  one  of  his 

1  Weblin  v.  Ballard,  17  Q.  B.  D.  122. 

2  Birmingham  Ry.  v.  Allen,  99  Ala.  359. 

3  Ross  v.  Pearson  Cordage  Co.,  164  Mass.  257  ;  41  N.  E.  Rep.  284. 


48  EMPLOYERS'  LIABILITY  ACTS. 

employees,  is  a  defect  in  the  condition  of  his  works  for 
which  he  is  liable  under  the  English  act.1 

§  35.  Miscellaneous  Cases. 

A  vicious  habit  of  kicking  in  a  horse  is  a  "defect" 
within  the  meaning  of  the  English  act  of  1880.2 

A  plank  only  eight  inches  wide,  laid  upon  rafters 
three  feet  apart  and  thirty  feet  above  the  floor  of  a 
building,  upon  which  plank  the  plaintiff's  intestate,  a 
night-watchman,  was  required  to  walk  in  the  discharge 
of  his  duties,  constitutes  a  defect  in  the  condition  of 
the  ways  within  the  terms  of  the  Alabama  Employers' 
Liability  Act.3 

In  Prendible  v.  Connecticut  River  Manuf.  Co.,  160 
Mass.  131,  a  staging,  upon  which  the  plaintiff  was  stand- 
ing to  pile  up  wood,  fell,  and  injured  him.  The  staging 
was  about  fifteen  feet  high,  twenty  feet  long,  and  five 
feet  wide,  and  was  moved  from  place  to  place,  and  used 
in  piling  wood.  It  was  erected  by  the  side  of  a  wood- 
pile, and  was  held  in  position  by  three  brackets,  each 
of  which  was  fastened  to  the  woodpile  by  six  wooden 
cleats,  one  end  of  each  cleat  being  nailed  to  the  wood- 
pile, and  the  other  end  to  the  upright  part  of  the 
bracket.  There  were  three  nails  at  each  end  of  each 
cleat,  and  the  cleats  were  about  two  feet  long,  about 
two  inches  wide,  and  an  inch  thick.  The  staging  was 
designed  to  hold  a  quantity  of  wood  and  two  men. 
There  was  one  prop,  or  support,  at  one  end  of  the 
staging  when  it  fell.  It  was  held  that  the  jury  was 

1  Brannigan  v.  Robinson,  [1892]  1  Q.  B.  344. 

2  Yarmouth  t>.  France,  19  Q.  B.  D.  647. 

»  United  States  Rolling  Stock  Co.  v.  Weir,  96  Ala.  396. 


49 

warranted  in  finding  that  there  was  a  defect  in  the  con- 
dition of  the  staging  within  the  meaning  of  the  statute  ; 
and  that  as  this  defect  was  not  discovered  or  remedied, 
owing  to  the  negligence  of  a  person  entrusted  by  the 
defendant  with  the  duty  of  seeing  that  the  ways,  works, 
or  machinery  were  in  proper  condition,  the  plaintiff  was 
entitled  to  recover. 

In  Willetts  v.  Watt,  [1892]  2  Q.  B.  92,  the  plaintiff, 
while  passing  from  one  part  of  the  defendant's  work- 
shop to  another  in  the  discharge  of  his  duties,  fell  into 
a  catchpit,  the  lid  of  which  had  been  removed  shortly 
before,  for  the  first  time  in  five  years,  to  make  some 
repairs.  The  lid  was  level  with  the  floor,  and  was 
ordinarily  used  as  part  of  the  floor  for  walking.  It  was 
held  by  the  Court  of  Appeal,  in  an  action  under  the 
Employers'  Liability  Act,  that  this  did~not  constitute  a 
defect  in  the  condition  of  the  way  within  the  meaning 
of  the  statute,  but  was  merely  a  negligent  user  of  the 
way  by  the  person  who  caused  the  removal  of  the  lid.1 
Fry,  L.  J.,  says,  in  his  opinion,  on  page  100 :  "  The 
way  was  properly  constructed  for  a  twofold  purpose : 
the  well  or  catchpit  might  be  used  when  required,  or 
the  place  might  be  used  for  general  purposes,  including 
that  of  a  way.  It  was  properly  adapted  to  subserve  both 
these  purposes,  and  the  cause  of  the  accident  was  not 
deficient  construction,  but  that  it  was  negligently  used 
for  one  of  the  purposes  without  notice  to  persons  who 
were  using  it  for  the  other." 

1  As  the  person  who  caused  the  removal  of  the  lid  was  probably  a 
superintendent,  the  plaintiff  was  granted  the  right  to  retry  his  case  under 
sub-section  2,  upon  the  payment  of  costs. 


CHAPTER  m. 


"  WAYS,  WORKS,  MACHINERY,  OR  PLANT.' 


Section 

36.  Statutory  provisions. 

37.  Definitions  and  illustrations. 

38.  "  Machinery  "  defined. 

39.  Temporary  structures. 

40.  Works  in  process  of  construc- 

tion or  destruction. 

41.  Movable  staging  owned  by  de- 

fendant. 

42.  Movable  stairs  owned  by  third 

person. 


Section 

43.  Foreign  car  used  by  defendant 

for  its  own  benefit. 

44.  Same. 

45.  Foreign  car  not  used  by  defend- 

ant,   but    merely    forwarded 
empty. 

46.  Railroad    track  of    connecting 

road. 

47.  Railroad  track  of  shipper. 


§  36.  Statutory  Provisions. 

THE  Massachusetts  and  Colorado  acts  relate  to  defects 
in  the  condition  of  the  "  ways,  works,  or  machinery," 
except  that,  in  the  sections  respecting  the  liability  of  an 
employer  to  an  employee  of  an  independent  contractor, 
the  term  "plant"  is  used  in  addition  to  the  terms 
"  ways,  works,  or  machinery." 

The  Alabama  and  English  acts  relate  to  defects  in 
the  condition  of  the  "  ways,  works,  machinery,  or 
plant."  The  Indiana  act  relates  to  "  ways,  works, 
plant,  tools,  and  machinery."  3 

1  Mass.  St.  1887,  ch.  270,  §  1,  cl.  1  ;  Colo.  St.  1893,  c.  77,  §  1,  cl.  1. 

2  Ala.  Code  of  1886,  §  2590,  cl.  1  ;  43  &  44  Viet.  ch.  42,  §  1,  cl.  1. 
8  Ind.  St.  1893,  ch.  130,  §  1,  cl.  1. 


"WAYS,  WORKS,  MACHINERY,  OR  PLANT."      51 

§  37.  Definitions  and  Illustrations. 

Wires  forming  part  of  a  railroad's  electric  system  of 
signals,  so  attached  to  the  rails  and  sleepers  as  to  trans- 
mit the  electric  current,  are  a  part  of  the  "  ways,  works, 
or  machinery  "  of  the  railroad,  within  the  meaning  of 
the  Massachusetts  statute.1 

To  constitute  a  "  way  "  within  the  meaning  of  the 
statute,  it  is  not  necessary  that  it  should  be  marked 
out  or  defined,  or  that  it  should  be  habitually  used  as 
a  way.  In  the  case  of  a  workshop  it  has  been  held  that 
the  course  which  the  workmen  ordinarily  take  in  going 
from  one  part  of  the  shop  to  another  in  the  discharge 
of  their  duties  is  such  a  way.2 

An  "exploder"  used  in  blasting  rock,  consisting  of 
a  copper  covering  filled  with  fulminate  of  mercury, 
which  is  bought  by  a  quarry-owner  and  instantly  con- 
sumed in  the  use  of  causing  an  explosion  by  electricity, 
is  not  a  part  of  his  "  ways,  works,  or  machinery,"  within 
the  meaning  of  the  Massachusetts  statute.3 

A  ladder  or  hand-hold  on  a  railroad  freight-car  is 
part  of  the  ways,  works,  machinery,  or  plant,  within 
the  meaning  of  the  Alabama  statute.4 

A  horse  is  a  part  of  the  "  plant "  of  a  warehouseman, 
within  the  meaning  of  the  English  statute.5 

1  Brouillette  v.  Connecticut  River  Ry.,  162  Mass.  198. 

2  Willetts  v.  Watt,  [1892]  2  Q.  B.  92. 
8  Shea  v.  Wellington,  163  Mass.  364. 

4  Louisville,  &c.  Ry.  v .  Pearson,  97  Ala.  211. 
6  Yarmouth  v.  France,  19  Q.  B.  D.  647. 


52  EMPLOYERS'  LIABILITY  ACTS. 

§  38.  "Machinery"  defined. 

The  term  "  machinery,"  as  used  in  the  Alabama  act, 
has  been  defined  by  the  Supreme  Court  of  that  State 
as  follows :  — 

"  The  term  (  machinery '  embraces  all  the  parts  and 
instruments  intended  to  be,  and  actually  operated,  from 
time  to  time,  exclusively  by  force  created  and  applied 
by  mechanical  apparatus  or  contrivance,  though  the 
initial  force  may  be  produced  by  the  muscular  strength 
of  men  or  animals,  or  by  water  or  steam,  or  other  inan- 
imate agency.1  The  carding,  spinning,  and  weaving 
machines,  together  with  the  instrumentality  by  which 
the  prime  motive-power  is  created  or  applied,  constitute 
the  machinery  of  a  cotton-mill.  When  cars,  though 
used  at  times  and  at  other  times  detached,  are  formed 
into  a  train,  to  which  the  propelling  force  is  imparted 
by  means  of  a  locomotive,  the  entire  train  constitutes 
machinery  connected  with  or  used  in  the  business.  .  .  . 
A  hammer  is  a  tool  or  instrument  ordinarily  used  by 
one  man  in  the  performance  of  manual  labor.  It  may 
be  made  an  essential  part  of  machinery  when  intended 
to  be,  and  is,  operated  by  means  thereof  ;  but  when  dis- 
connected from  any  other  mechanical  appliances,  and 
operated  singly  by  muscular  strength  directly  applied, 
such  tool  or  instrument  is  not  ( machinery '  in  its  most 
comprehensive  signification,  or  in  the  meaning  of  the 
statute."  2 

It  was  accordingly  held  that  the  plaintiff  could  not 
recover  for  an  injury  caused  by  a  defective  hammer, 

1  Citing  Seavey  v.  Central  Ins.  Co.,  Ill  Mass.  540. 

2  Georgia  Pacific  Ky.  v.  Brooks,  84  Ala.  138,  140,  141. 


"WAYS,  WORKS,  MACHINERY,  OR  PLANT."       53 

which  was  disconnected  from  other  mechanical  appli- 
ances, and  was  operated  singly  by  muscular  strength 
directly  applied. 

§  39.  Temporary  Structures. 

The  words  "  ways "  and  "  works "  in  the  statute 
apply  only  to  ways  and  works  of  a  permanent  or  quasi- 
permanent  character.  They  do  not  apply  to  ways  or 
works  of  a  merely  temporary  character,  although  they 
are  connected  with,  or  used  in  the  business  of,  the 
employer.  Hence,  it  has  been  held  under  the  Massachu- 
setts act  that  a  temporary  staging,  put  up  by  masons 
employed  by  a  contractor  to  erect  a  building  on  the 
land  of  a  third  person,  is  no  part  of  the  contractor's 
ways  or  works,  and  that  he  is  not  liable  to  an  employee 
for  an  injury  caused  by  a  defect  in  the  condition  of  the 
staging.1 

So,  in  Lynch  v.  Allyn,  160  Mass.  248,  in  which  the 
plaintiff  was  injured  by  the  caving  in  of  a  bank  of 
earth  upon  which  he  was  working,  on  the  land  of  a 
third  person,  the  court  says,  through  Mr.  Justice  La- 
throp,  on  page  252  :  "  The  language  of  the  section  seems 
to  us  to  point  to  ways  and  works  of  a  permanent  charac- 
ter, such  as  are  connected  with  or  used  in  the  business 
of  the  employer."  It  was  accordingly  held  that  the 
liability  of  a  bank  of  earth  upon  the  land  of  a  third 
person  to  fall  when  undermined  by  workmen,  if  not 
shored  up,  is  not  a  "  defect  in  the  condition  of  the 
ways,  works,  or  machinery  connected  with,  or  used  in 
the  business  of,  the  employer,"  when  the  work  on  the 
bank  is  simply  the  levelling  of  it  for  grading  the  land 
of  a  person  other  than  the  defendant. 

1  Burns  v.  Washburn,  160  Mass.  457. 


54  EMPLOYERS'  LIABILITY  ACTS. 

§  40.   Works  in  Process  of  Construction  or  Destruc- 
tion. 

It  has  been  decided  under  the  English  act  that  the 
owner  of  works  in  process  of  construction  is  not  liable 
to  an  employee  for  an  injury  caused  by  a  defect  in  their 
condition,  because  until  they  are  completed  they  cannot 
be  said  to  be  "  connected  with  or  used  in  the  business 
of  the  employer,"  within  the  meaning  of  the  statute.1 
In  Conroy  v.  Clinton,  158  Mass.  318,  320,  where  an 
employee  was  killed  by  the  caving  in  of  a  sewer  trench 
in  course  of  construction,  the  court  remarked  that  the 
question  whether  the  case  fell  within  the  terms  "  ways  " 
or  "  works "  in  the  Massachusetts  act  was  "  not  free 
from  difficulty."  The  decision,  however,  turned  upon 
another  point,  and  the  court  deemed  it  unnecessary  to 
determine  this  question. 

The  case  of  a  building  contractor  is,  however,  dif- 
ferent from  that  of  an  owner  in  this  respect.  Works 
in  process  of  construction  or  demolition  by  a  builder 
are  "connected  with  or  used  in  the  business"  of  such 
a  person,  and  therefore  he  is  liable  to  one  of  his  em- 
ployees who  is  injured  by  a  defect  in  their  condition. 
In  Brannigan  v.  Robinson,  [1892]  1  Q.  B.  344,  the 
defendant,  a  builder,  was  engaged  to  pull  down  an  old 
house  belonging  to  a  third  person.  During  the  course 
of  the  work,  he  ordered  the  plaintiff,  a  laborer  in  his 
employment,  to  remove  certain  debris  which  lay  on  the 
ground  near  one  of  the  standing  walls.  The  defendant 
had  neglected  to  have  this  wall  shored  up,  and  it  fell 
upon  the  plaintiff  and  caused  the  injuries  complained  of. 

1  Howe  v.  Finch,  17  Q.  B.  D.  187. 


"WATS,  WORKS,  MACHINERY,  OR  PLANT."      55 

It  was  held  that  the  defendant  was  liable  under  the  act. 
Lawrence,  J.,  says  on  page  346 :  "  The  defendant  was 
a  builder,  whose  business  it  was  to  pull  down  walls,  as 
well  as  to  build  them  up.  The  walls  he  deals  with  must 
be  just  as  much  works  connected  with  his  business  in 
the  one  case  as  in  the  other."  Wright,  J.,  says  on  page 
347  :  "  The  question  is  whether,  under  those  circum- 
stances, the  insecurity  of  the  wall  was  not  a  defect  in 
the  condition  of  the  works  within  the  meaning  of  the 
act.  If  we  were  to  hold  that  it  was  not,  I  think  we 
would  be  putting  an  unduly  narrow  interpretation  upon 
the  word  '  works,'  and  should  be  excluding  from  the 

'  O 

operation  of  the  act  a  large  class  of  businesses  which  are 
not  carried  on  upon  any  fixed  site.  I  cannot  see  why 
premises  which  are  in  the  possession  of  a  person  for  the 
purposes  of  his  business  should  not  be  regarded  as  the 
works  of  such  person,  so  long  as  he  is  carrying  on  his 
business  there.  The  case  of  Howe  v.  Finch,  17  Q.  B.  D. 
187,  is  not  in  any  way  inconsistent  with  our  judgment ; 
for  in  that  case  the  employer  who  was  sued  was  not  the 
builder,  but  the  owner  of  the  premises,  and  the  wall, 
being  still  in  an  unfinished  state  and  in  the  possession 
of  the  builder  at  the  time  of  the  accident,  could  not 
have  been  said  to  be  connected  with  or  used  in  the 
business  of  the  employer." 

An  employer  is,  however,  liable  for  the  negligence  of 
his  superintendent,  under  another  clause  of  the  statute, 
while  engaged  in  superintending  the  building  or  con- 
struction of  his  ways,  works,  or  machinery.1 

1  Lynch  ».  Allyn,  160  Mass.  248  ;  Hennessy  v.  Boston,  161  Mass.  602  ; 
post,  §§  57,  58. 


56  EMPLOYERS'  LIABILITY  ACTS. 

§  41.  Movable  Staging  owned  by  Defendant. 
In  Prendible  v.  Connecticut  River  Manuf.  Co.,  160 
Mass.  131,  an  employee  was  injured  by  the  fall  of  a 
staging  owned  and  used  by  the  defendant.  The  staging 
was  fifteen  feet  high,  twenty  feet  long,  and  five  feet 
wide,  and  was  used  in  the  yard  of  defendant's  sawmill 
by  the  workmen  in  piling  up  the  wood.  It  was  moved 
from  place  to  place  as  the  work  required,  and  was 
generally  used  in  one  place  for  four  days  or  a  week 
at  a  time.  It  was  held  that  the  staging,  when  erected, 
was  a  part  of  the  "  ways,  works,  or  machinery  "  of  the 
defendant,  within  the  meaning  of  the  statute. 

§  42.  Movable  Stairs  owned  by  Third  Person. 

In  Regan  v.  Donovan,  159  Mass.  1,  the  plaintiff  was 
injured  by  the  slipping  of  a  flight  of  movable  stairs. 
The  defendants  were  contractors  and  builders,  and  were 
employed  by  one  Roughan  to  do  some  work  in  his  cel- 
lar. Several  months  before  this  the  defendants  had 
constructed  the  stairs  for  Roughan,  and  put  them  in 
the  cellar.  The  plaintiff  was  ordered  by  one  of  the 
defendants  to  take  a  bar  of  iron  down  the  stairs,  and 
while  in  the  act  of  doing  so  the  stairs  slipped  and  he 
was  injured.  It  was  held  that  the  stairs  were  not  a 
part  of  the  ways  connected  with  or  used  in  the  business 
of  the  defendant,  within  the  terms  of  the  Employers' 
Liability  Act,  and  that  the  plaintiff  could  not  recover. 
In  the  court's  opinion,  delivered  by  Mr.  Justice  Allen, 
it  is  said  :  — 

"  Nor  can  the  action  be  supported  under  the  Employ- 
ers' Liability  Act,  St.  1887,  ch.  270,  on  the  ground  that 


"WAYS,  WORKS,  MACHINERY,  OR  PLANT."       57 

there  was  a  defect  in  the  ways  connected  with,  or  used 
in  the  business  of,  the  employer.  It  cannot  be  held 
that  the  defendants  adopted  the  stairs  as  a  way  used 
in  their  business."  Page  3. 

§  43.  Foreign  Car  used  by  Defendant  for  its  own 

Benefit. 

It  is  settled  that  a  foreign  car,  one  not  belonging  to 
the  defendant,  constitutes  a  part  of  the  defendant's 
"  works  or  machinery  "  within  the  meaning  of  the  stat- 
ute, if  it  is  used  by  the  defendant  for  its  own  benefit. 
Such  use  may  be  in  the  form  of  a  charge  for  freight 
for  hauling  over  its  road,1  or  it  may  be  in  the  form  of 
a  hiring  for  use  from  another  person  or  corporation.2 
In  any  such  case,  the  fact  that  the  defendant  is  not 
the  owner  of  the  car  is  immaterial.  For  the  time  being, 
the  car  is  a  part  of  the  defendant's  rolling-stock. 

In  Bowers  v.  Connecticut  River  Ry.,  162  Mass.  312, 
317,  Mr.  Justice  Allen,  in  delivering  the  opinion  of  the 
court,  says :  — 

"  The  first  question  under  this  count  is,  whether  the 
cars  were  a  part  of  the  ways,  works,  and  machinery 
used  in  the  business  of  the  defendant,  within  the  mean- 
ing of  the  statute.  They  were  loaded  freight -cars 
which  had  come  from  other  railroads,  and  which  were 
to  be  hauled  over  a  part  of  the  defendant's  railroad  for 
the  transportation  of  the  freight  contained  therein, 
in  the  due  course  of  the  defendant's  business.  For  the 
time  being,  they  were  used  in  the  defendant's  business 
as  a  part  of  its  rolling-stock.  The  fact  that  the  defend- 

1  Bowers  v.  Connecticut  River  Ry.,  162  Mass.  312. 

2  Spaulding  v.  Flynt  Granite  Co.,  159  Mass.  587. 


58  EMPLOYERS'  LIABILITY  ACTS. 

ant  did  not  own  them  is  immaterial.  The  defendant 
was  not  bound  to  use  them  in  its  train  if,  on  inspection, 
they  were  found  to  be  unsafe.  We  think  cars  so  used 
must  be  deemed  to  be  a  part  of  the  defendant's  works 
and  machinery.  Coffee  v.  New  York,  New  Haven  & 
Hartford  Railroad,  155  Mass.  21;  Gottlieb  v.  New 
York,  Lake  Erie  &  Western  Railroad,  100  N.  Y.  462 ; 
Fay  v.  Minneapolis  &  St.  Louis  Ry.,  30  Minn.  231." 

In  Spaulding  v.  Flynt  Granite  Co.,  159  Mass.  587,  the 
plaintiff  was  injured  by  a  defective  brake  in  a  car 
belonging  to  the  Boston  &  Albany  Railroad,  which  the 
defendant  was  using  to  transport  its  stone  from  the 
quarry  to  the  railroad  track.  The  chief  defence  was 
that,  as  the  defendant  had  to  take  such  cars  as  it  could 
get  from  the  railroad  company,  it  should  not  be  held 
to  the  rule  as  to  furnishing  proper  instrumentalities, 
but  only  to  the  duty  of  inspection.1  The  court  held, 
however,  that  the  defendant  was  liable  on  the  ground 
that  it  had  failed  to  furnish  proper  appliances  in  the 
transaction  of  its  business.  In  delivering  the  opinion, 
Holmes,  J.,  says :  "  Whatever  may  be  said  of  a  car 
received  by  a  railroad  only  for  the  purpose  of  being 
forwarded,  and  not  used  by  it  at  all  in  the  process 
(Coffee  v.  New  York,  New  Haven  &  Hartford  Rail- 
road, 155  Mass.  21, 23),  this  car  was  used  by  the  defend- 
ant as  one  of  the  instruments  of  its  business.  When 
that  is  the  case,  it  does  not  matter  whether  the  defendant 
owns  the  thing  used  or  borrows  it.  The  responsibility 
of  the  master  to  his  servants  is  the  same  either  way. 
.  .  .  Probably,  if  the  defendant  had  seen  fit  to  furnish 

1  Mackin  v.  Boston  &  Albany  Ry.,  135  Mass.  201  ;  Keith  v.  New  Haven 
Co.,  140  Mass.  175,  180. 


"WAYS,  WORKS,  MACHINERY,  OR  PLANT."       59 

its  own  cars,  it  could  have  done  so.  Certainly  it  was  at 
liberty  to  carry  the  stone  to  the  railroad  by  other  means 
if  it  preferred.  Even  if  the  course  of  business  adopted 
was  the  only  one  commercially  practicable,  there  was 
nothing  to  hinder  the  defendant  from  seeing  that  the 
cars  furnished  it  were  put  into  proper  condition  before 
they  were  used."  Pages  588,  589. 

§  44.  Same. 

In  Alabama  it  has  also  been  held  that,  if  the  defend- 
ant uses  a  foreign  car,  it  is  liable  to  an  employee  under 
the  statute  for  a  defect  in  its  condition,  to  the  same 
extent  as  if  the  car  belonged  to  the  defendant.1 

In  Gottlieb  v.  New  York  &c.  Ry.,  100  N.  Y.  462, 
469,  Mr.  Justice  Earl,  speaking  for  the  court,  says  :  "  It 
[a  railroad  company]  is  not  bound  to  take  such  cars  if 
they  are  known  to  be  defective  and  unsafe.  Even  if  it 
is  not  bound  to  make  tests  to  discover  secret  defects, 
and  is  not  responsible  for  such  defects,  it  is  bound  to 
inspect  foreign  cars  just  as  it  would  inspect  its  own 
cars.  It  owes  the  duty  of  inspection  as  master,  and  is 
at  least  responsible  for  the  consequences  of  such  defects 
as  would  be  disclosed  or  discovered  by  ordinary  inspec- 
tion. When  cars  come  to  it  which  have  defects  visible 
or  discoverable  by  ordinary  inspection,  it  must  either 
remedy  such  defects  or  refuse  to  take  such  cars ;  so 
much,  at  least,  is  due  from  it  to  its  employees.  The 
employees  can  no  more  be  said  to  assume  the  risks  of 
such  defects  in  foreign  cars  than  in  cars  belonging  to 
the  company.  As  to  such  defects,  the  duty  of  the  com- 
pany is  the  same  as  to  all  cars  drawn  over  its  road." 

1  Louisville  &c.  Ry.  v.  Davis,  91  Ala.  487  ;  Alabama  Great  Southern 
Ry.  v.  Carroll,  97  Ala.  126. 


60  EMPLOYERS'  LIABILITY  ACTS. 

It  was  accordingly  held  that  bumpers  only  three 
inches  wide  on  foreign  freight -cars,  which  defendant 
was  transporting  loaded  over  its  line,  were  defects  which 
should  have  been  discovered  by  ordinary  inspection  ; 
and  that  the  defendant  railroad  was  liable  to  a  brake- 
man  in  its  employ  who  was  crushed  between  such  cars 
while  attempting  to  couple  them.1 

In  Baltimore  &c.  Ry.  v.  Mackey,  157  U.  S.  72,  a  car 
inspector  and  repairer  in  the  defendant's  employ  was 
crushed  between  two  cars  while  repairing  a  draw-head. 
The  injury  was  caused  by  a  defective  brake  on  a  loaded 
foreign  car,  which  allowed  a  train  of  freight-cars  to  go 
down  grade  and  to  bump  into  the  cars  that  deceased 
was  repairing.  It  was  held  that  knowledge  of  the  de- 
fective brake  could  not  be  imputed  to  the  deceased, 
because  he  had  had  no  opportunity  to  see  it,  and  that 
the  defendant  railroad  was  liable.  In  delivering  the 
court's  opinion,  Mr.  Justice  Harlan  says,  on  page  91 :  — 

"  We  are  of  opinion  that  sound  sense  and  public 
policy  concur  in  sustaining  the  principle  that  a  railroad 
company  is  under  a  legal  duty  not  to  expose  its  em- 
ployees to  dangers  arising  from  such  defects  in  foreign 
cars  as  may  be  discovered  by  reasonable  inspection 
before  such  cars  are  admitted  into  its  train." 

§  45.  Foreign  Car  not  used  by  Defendant,  but  merely 

forwarded  empty. 
Under  the  original  Massachusetts  act,  it  was  held  that 

O  ' 

an  empty  car  belonging  to  another  railroad  company, 

1  See,  also,  Goodrich  v.  New  York  Central  &c.  Ry.,  116  N.  Y.  398  ; 
Reynolds  v.  Boston  &  Maine  Ry.,  64  Vt.  66  ;  Chicago  &c.  Ry.  v.  Avery, 
109  111.  314. 


"WAYS,  WORKS,  MACHINERY,  OR  PLANT."       61 

which  was  received  and  forwarded  by  the  defendant 
company  without  using  it  in  the  process  for  its  own 
benefit,  was  not  part  of  the  "  ways,  works,  or  machinery 
connected  with  or  used  in  the  business  of  the  employer  " 
within  the  meaning  of  the  statute,  and  that  accord- 
ingly the  employer  was  not  liable  for  an  injury  caused 
to  an  employee  by  reason  of  a  defect  in  the  brake- 
wheel  of  such  a  car.1 

By  the  Massachusetts  amendatory  statute  of  1893, 
ch.  359,  the  mere  fact  that  a  car  is  in  the  possession 
of  a  railroad  company  is  declared  to  make  it  a  part  of 
its  ways,  works,  or  machinery.  The  act  reads  as  fol- 
lows :  "  A  car  in  use  by  or  in  the  possession  of  a  rail- 
road company  shall  be  considered  a  part  of  the  ways, 
works,  or  machinery  of  the  company  using  or  having 
the  same  in  possession,  within  the  meaning  of  this  act, 
whether  such  car  is  owned  by  it  or  by  some  other  com- 
pany or  person." 

This  statute  seems  to  change  the  rule  announced  in 
Thyng  v.  Fitchburg  Ry.,  156  Mass.  13,  under  the  origi- 
nal Massachusetts  act,  as  well  as  the  common-law  rule 
declared  in  Mackin  v.  Boston  &  Albany  Ry.,  135  Mass. 
201.  These  cases  held  that,  when  foreign  cars  were 
received  by  the  defendant  railroad  company  for  the 
purpose  of  forwarding,  the  defendant  was  not  held  to 
the  strict  rule  as  to  furnishing  proper  appliances  for  the 
work,  but  merely  to  the  duty  of  inspection.  Hence,  if 
the  defendant  provided  a  sufficient  number  of  compe- 
tent inspectors,  it  was  not  liable  for  an  injury  caused 
by  reason  of  a  defect  in  the  car's  original  construc- 
tion or  present  condition,  which  was  not  discovered 

1  Coffee  v.  New  York  &c.  Ry.,  155  Mass.  21. 


62  EMPLOYERS'  LIABILITY  ACTS. 

or  remedied  owing  to  the  negligence  of  the  inspector, 
or  other  person  entrusted  by  the  defendant  with  the 
duty  of  seeing  that  the  cars  were  in  proper  condition.1 
The  common  employer  was  not  liable  at  common  law, 
because  the  inspector  was  a  fellow-servant  with  the 
injured  employee ; 2  and  the  railroad  company  was  not 
liable  under  the  original  statute,  because  a  foreign  car 
so  used  was  not  part  of  the  "  ways,  works,  or  machinery 
connected  with  or  used  in  the  business  of  the  employer." 
The  act  of  1893,  ch.  359,  therefore,  gives  an  em- 
ployee, who  is  injured  by  reason  of  a  defect  in  a  for- 
eign car  which  is  in  possession  of  though  not  in  use  by 
the  defendant,  which  defect  the  inspector  negligently 
failed  to  discover  or  remedy,  a  right  of  action  against 
his  employer,  if  a  railroad  company,  by  expressly  de- 
claring that  such  a  car  "  shall  be  considered  a  part  of 
the  ways,  works,  or  machinery  of  the  company  using  or 
having  the  same  in  possession."  A  car-inspector  is 
obviously  a  person  entrusted  with  the  duty  of  seeing 
that  the  employer's  ways,  works,  or  machinery  are  in 
proper  condition.3 

§  46.  Railroad  Track  of  Connecting  Road. 

The  occasional  use  by  the  defendant  railroad  com- 
pany of  a  connecting  railroad's  track,  in  delivering  and 
taking  cars  in  the  course  of  business,  does  not  make 
such  track  a  part  of  the  defendant's  "  ways "  within 
the  meaning  of  the  Employers'  Liability  Act.  The 

1  See,  also,  Kelly  v.  Abbot,  63  Wis.  307. 

2  Dewey  v.  Detroit  &c.  Ry.,  97  Mich.  329  ;  Sraoot  v.  Mobile  &c.  Ry., 
67  Ala.  13. 

8  Bowers  v.  Connecticut  River  Ry.,  162  Mass.  312. 


"WAYS,  WORKS,  MACHINERY,  OR  PLANT."      63 

mere  license  to  use  such  track  does  not  give  the  de- 
fendant any  control  over  it,  nor  impose  any  obligation 
upon  the  defendant  to  prevent  defects  in  its  condition.1 
Hence  the  defendant  is  not  liable  to  its  employee  for 
an  injury  received  by  reason  of  a  defect  in  that  track. 

Mr.  Justice  Morton,  in  delivering  the  court's  opinion 
in  Trask  v.  Old  Colony  Ry.,  156  Mass.  298,  at  303, 
says :  — 

"  It  may  not  be  necessary,  in  order  to  render  an 
employer  liable  for  an  injury  occurring  to  an  employee 
through  a  defect  in  the  ways,  works,  or  machinery,  that 
they  should  belong  to  him,  but  it  should  at  least  appear 
that  he  has  the  control  of  them,  and  that  they  are  used 
in  his  business,  by  his  authority,  express  or  implied.2 
Neither  the  employer  nor  any  person  in  his  service  can 
be  justly  charged  with  negligence  as  to  matters  over 
which  they  have  no  control.  The  phrase,  '  connected 
with  or  used  in  the  business  of  the  employer '  (St.  1887, 
ch.  270,  §  1,  cl.  1),  cannot  be  taken  literally,  but,  when 
used  in  connection  with  ways,  works,  and  machinery, 
must  be  understood  to  mean  ways,  works,  and  ma- 
chinery connected  with  or  used  in  the  business  of  the 
employer  by  his  authority  and  subject  to  his  control." 

§  47.  Railroad  Track  of  Shipper. 
In  Engel  v.  New  York  &c.  Ry.,  160  Mass.  260,  it 
was  held  by  a  majority  of  the  court  that  a  track  in  the 
yard  of  a  shipper  of  freight,  owned,  maintained,  and 
repaired  by  him,  is  no  part  of  a  railroad's  "  ways," 
though  it  is  used  by  the  railroad  under  a  contract  with 
the  shipper  for  the  delivery  of  freight  in  the  yard. 

1  Trask  v.  Old  Colony  Ry.,  156  Mass.  298. 

2  Citing  Roberts  &  Wallace,  Employers'  Liability  (3d  ed.),  249,  250. 


64  EMPLOYERS'  LIABILITY  ACTS. 

The  case  was  decided  upon  the  authority  of  Trask  v. 
Old  Colony  Ry.,  156  Mass.  298.  Mr.  Justice  Knowl- 
ton,  however,  dissented,  and  distinguished  the  case  from 
the  Trask  case  upon  the  ground  that,  in  that  case,  "  the 
defendant  had  no  control  nor  right  of  control,  nor  right 
to  demand  a  safe  condition,  of  the  track  of  the  other 
railroad.  But  in  the  present  case  the  track  is  furnished 
to  the  defendant  as  a  place  on  which  to  do  its  regular 
business  for  pay ;  and  the  defendant  has  the  control  of 
it  in  the  sense  that  it  has  a  right  to  insist  on  its  being 
kept  in  a  safe  condition  for  the  transaction  of  the  busi- 
ness which  it  has  agreed  to  do."  Page  266. 

Although  the  court  repudiates  the  idea  that  owner- 
ship of  the  track  by  the  defendant  is  a  necessary  condi- 
tion of  its.  liability  (page  261),  yet,  upon  its  reasoning, 
it  is  difficult  to  see  what  control  of  a  track  short  of 
ownership  would  render  the  track  a  part  of  its  ways. 
After  quoting  the  language  of  §  1,  cl.  1,  the  court 
adds :  "  These  words  mean  that  the  defect  must  be  one 
which  the  employer  has  a  right  to  remedy  if  he  does 
discover  it,  and  of  a  kind  which  it  is  possible  to  charge 
a  servant  with  the  duty  of  setting  right."  Page  261. 

The  court,  therefore,  held  that  the  railroad  company 
was  not  liable  to  an  employee  for  an  injury  caused  by 
reason  of  a  defect  in  the  condition  of  the  track,  but 
intimated  that  there  was  a  remedy  against  the  shipper 
for  negligence.1 

The  dissenting  opinion  is  supported  by  Stetler  v. 
Chicago  &c.  Ry.,  46  Wis.  497,  and  seems  to  be  the 
better  view  of  the  subject^ 

1  Citing  Finnegan  v.  Fall  River  Gas  Co.,  159  Mass.  311,  and  Osborne 
t?.  Morgan,  130  Mass.  102, 104. 

2  See,  also,  Commonwealth  v.  Boston  &  Lowell  Ry.,  126  Mass.  61. 


CHAPTER  IV. 


NEGLIGENCE  OF  SUPERINTENDENT. 


Section 

48.  Statutory  provisions. 

49.  Enlargement      of      employee's 

common-law  rights. 

50.  Common  law  respecting  super- 

intendent's negligence  com- 
pared with  Employers'  Liabil- 
ity Act. 

51.  Same. 

52.  Who     are     "  superintendents  " 

within  the  meaning  of  the 
statute. 

53.  Who  are  not  "  superintendents  " 

within  the  meaning  of  the 
statute. 

54.  Same.     "  Sole     or     principal " 

duty. 

55.  Same.     Charge  or  control  does 

not  render  one  a  superintend- 
ent. 

56.  Negligence    of    employer    and 

superintendent. 

57.  What  is  negligence  of  superin- 

tendent.    Alabama  cases. 

58.  Same.     Massachusetts  cases. 


Section 

59.  Negligence  must   be  an  act  of 

superintendence. 

60.  Superintendent   doing  work  of 

common  laborer. 

61.  Temporary  absence  of  superin- 

tendent. 

62.  Instructions    upon    matters   of 

detail. 

63.  Conflicting      evidence     as     to 

whether  person  causing  in- 
jury is  a  superintendent :  jury 
to  decide. 

64.  That  superintendent  is  a  care- 

ful workman  is  no  defence. 

65.  Common  employment  under  dif- 

ferent employers. 

66.  General  and  special  servants. 

67.  Injury   to    superior    officer   or 

other  employee  not  under  the 
superintendence  of  the  negli- 
gent superintendent. 

68.  Employee  liable  to  co-employee 

for  negligence. 


§  48.  Statutory  Provisions. 

THE  Massachusetts  act  of  1887  gives  a  right  of 
action  to  an  employee  who  is  injured  "  by  reason  of  the 
negligence  of  any  person  in  the  service  of  the  employer, 
entrusted  with  and  exercising  superintendence,  whose 


66  EMPLOYERS'  LIABILITY  ACTS. 

sole  or  principal  duty  is  that  of  superintendence ; "  1 
and  the  act  of  1894,  ch.  499,  enlarges  the  employee's 
right  of  action  by  adding  the  words,  "  or,  in  the  ab- 
sence of  such  superintendent,  of  any  person  acting  as 
superintendent  with  the  authority  or  consent  of  such 
employer."  2 

The  fifth  section  of  the  Massachusetts  act  of  1887 
contains  a  qualification  of  this  right  of  action  in  these 
words  :  — 

"  An  employee  or  his  legal  representatives  shall  not 
be  entitled  under  this  act  to  any  right  of  compensa- 
tion or  remedy  against  his  employer  in  any  case  where 
such  employee  knew  of  the  defect  or  negligence  which 
caused  the  injury,  and  failed  within  a  reasonable  time 
to  give,  or  cause  to  be  given,  information  thereof  to  the 
employer,  or  to  some  person  superior  to  himself,  in  the 
service  of  the  employer,  who  had  entrusted  to  him  some 
general  superintendence." 

The  Alabama  statute  gives  a  right  of  action  in  §  2590 
of  the  Code  of  1886:  — 

"2.  When  the  injury  is  caused  by  reason  of  the 
negligence  of  any  person  in  the  service  or  employment 
of  the  master  or  employer,  who  has  any  superintendence 
intrusted  to  him,  whilst  in  the  exercise  of  such  superin- 
tendence. 

"3.  When  such  injury  is  caused  by  reason  of  the 
negligence  of  any  person  in  the  service  or  employment 
of  the  master  or  employer,  to  whose  orders  or  directions 
the  servant  or  employee,  at  the  time  of  the  injury,  was 
bound  to  conform,  and  did  conform,  if  such  injuries 
resulted  from  his  having  so  conformed. 

1  St.  1887,  ch.  270,  §  1,  cl.  2.  a  St.  1894,  ch.  499,  §  1. 


NEGLIGENCE  OF  SUPERINTENDENT.       67 

4.  "  When  such  injury  is  caused  by  reason  of  the  act 
or  omission  of  any  person  in  the  service  or  employment 
of  the  master  or  employer,  done  or  made  in  obedience 
to  the  rules  and  regulations  or  by-laws  of  the  master 
or  employer,  or  in  obedience  to  particular  instructions 
given  by  any  person  delegated  with  the  authority  of 
the  master  or  employer  in  that  behalf." 

The  qualification  upon  this  right,  reads  as  follows :  — 
"  But  the  master  or  employer  is  not  liable  under  this 
section  if  the  servant  or  employee  knew  of  the  defect 
or  negligence  causing  the  injury,  and  failed  in  a  reason- 
able time  to  give  information  thereof  to  the  master  or 
employer,  or  to  some  person  superior  to  himself  engaged 
in  the  service  or  employment  of  the  master  or  employer, 
unless  he  was  aware  that  the  master  or  employer,  or 
such  superior,  already  knew  of  such  defect  or  negli- 
gence." 

§  49.  Enlargement  of  Employee's  Common-Law 
Rights. 

This  is  an  important  enlargement  of  the  rights  of 
employees  and  of  the  liabilities  of  employers.  It  gives 
a  right  of  action  in  many  cases  for  the  negligence  of  a 
superintendent,  who  at  common  law  was  deemed  to  be 
merely  a  fellow-servant,  for  whose  negligence  the  com- 
mon employer  was  not  liable.  It  restricts  the  defence 
of  employers  that  the  injury  was  caused  by  the  negli- 
gence of  a  fellow-servant.2 

In  Griffiths  v.  Dudley,  9  Q.  B.  D.  357,  362,  Field, 

1  Ala. 'Code,  §2590. 

2  Coffee  v.  New  York  &c.  Ry.,  155  Mass.  21,  22  ;  O'Maley  v.  South 
Boston  Gas  Light  Co.,  158  Mass.  135,  136. 


68  EMPLOYERS'  LIABILITY  ACTS. 

J.,  says  :  "  The  Employers'  Liability  Act  was  passed  to 
obviate  the  injustice  to  workmen  that  employers  should 
escape  liability  where  persons  having  superintendence 
and  control  in  the  employment  were  guilty  of  negli- 
gence causing  injury  to  the  workmen.  The  employer 
was,  before  the  passing  of  the  act,  clearly  liable  where 
he  himself  was  guilty  of  negligence.  It  is  also  clear 
now  that,  for  the  negligence  of  a  fellow-workman  not 
coming  within  any  of  the  classes  of  persons  specified  in 
the  act,  the  employer  is  not  liable.  But  before  the 
passing  of  the  act,  Wilson  v.  Merry,  L.  R.  1  H.  L.  Sc. 
326,  had  decided  that,  where,  the  injury  was  caused 
through  the  negligence  of  a  superior  person  in  the 
employment,  the  workmen  could  recover  no  damages 
from  their  common  employer.  The  object  of  the  act 
was  to  get  rid  of  the  inference  arising  from  the  fact 
of  common  employment  with  respect  to  injuries  caused 
by  any  persons  belonging  to  the  specified  classes." 

§  50.   Common  Law  respecting  Superintendent's  Neg- 
ligence compared  with  Employers'  Liability  Act. 

In  Massachusetts  the  rule  has  always  been  strictly 
enforced  in  common-law  actions  that  the  common  em- 
ployer is  not  liable  to  an  employee  for  injuries  sustained 
through  the  negligence  of  a  superintendent  or  superior 
workman.  The  fact  that  the  latter  has  control  over  the 
plaintiff  is  deemed  immaterial.1  Even  when  the  injury 
is  caused  by  the  negligent  order  of  the  defendant's 

1  Kalleck  v.  Deering,  161  Mass;  469  ;  Moody  v.  Hamilton  Manuf.  Co., 
159  Mass.  70  ;  Zeigler  ».  Day,  123  Mass.  152  ;  Floyd  v.  Sugden,  134 
Mass.  563  ;  Walker  v.  Boston  '&  Maine  Ry.,  128  Mass.  8  ;  McKinnon  v. 
Norcross,  148  Mass.  533  ;  Howard  v.  Hood,  155  Mass.  391. 


NEGLIGENCE  OF  SUPERINTENDENT.       69 

superintendent  either  to  a  third  person  or  to  the  injured 
employee,  the  defendant  is  not  liable  at  common  law.1 

In  Rogers  v.  Ludlow  Manuf.  Co.,  144  Mass.  198, 
203,  Mr.  Justice  Field  for  the  court  says  :  "  It  is  settled 
in  this  Commonwealth  that  all  servants  employed  by 
the  same  master  in  a  common  service  are  fellow-ser- 
vants, whatever  may  be  their  grade  or  rank." 2 

In  Kenney  v.  Shaw,  133  Mass.  501,  an  action  at  com- 
mon law,  a  workman  was  injured  while  engaged  in 
blasting  at  a  quarry,  by  reason  of  the  negligence  of  the 
defendant's  superintendent.  It  was  held  that  "  the 
injury  was  caused  by  one  of  the  risks  of  the  employ- 
ment which  the  plaintiff  assumed,"  and  that  he  could 
not  therefore  recover  of  the  common  employer. 

In  the  later  case  of  Malcolm  v.  Fuller,  152  Mass. 
160,  under  the  Employers'  Liability  Act,  upon  similar 
facts,  it  was  held  that  one  object  of  the  statute  was  to 
prevent  the  plaintiff  from  assuming  the  risk  of  a  super- 
intendent's negligence,  and  to  make  the  common  em- 
ployer liable  for  such  negligence,  and  that  accordingly 
the  plaintiff  could  recover. 

In  McGinty  v.  Athol  Reservoir  Co.,  155  Mass.  183, 
an  employee  was  injured  by  the  fall  of  a  derrick,  caused 
by  the  pulling  up  of  the  post  to  which  one  of  the  guy 
ropes  was  fastened.  The  post  was  set  by  another  work- 

1  Albro  v.  Agawam  Canal  Co.,  6  Cush.  75  ;  Flynn  v.  Salem,  134  Mass. 
351  ;  Benson  v.  Goodwin,  147  Mass.  237. 

2  This   rule   prevails  also   in   the   following   jurisdictions  :   Brown  v. 
Winona  &c.  Ry.,    27  Minn.  162  ;  Gonsoir  v.  Minneapolis  &c.  Ry.,  36 
Minn.  385  ;  Mobile  &c.  Ry.  v.  Smith,  59  Ala.  245  ;  Brodeur  v.  Valley 
Falls  Co.,  16  R.  I.  448  ;  Keystone  Bridge  Co.  v.  Newberry,  96  Pa.  St. 
246  ;   Blake   v.   Maine  Central   Ry.,  70  Me.  60  ;   Pennsylvania  Ry.  v. 
Wachter,  60  Md.  395  ;  Wilson  v.  Merry,  1  H.  L.  Sc.  326. 


70  EMPLOYEES'  LIABILITY  ACTS. 

man,  under  the  direction  of  the  defendant's  superin- 
tendent. In  an  action  at  common  law,  it  was  held  that 
the  superintendent  was  a  feUow-servant  with  the  plain- 
tiff, for  whose  negligence  the  defendant  was  not  liable. 
If  the  action  had  been  under  the  Employers'  Liability 
Act,  the  plaintiff  could  probably  have  recovered. 

The  Alabama  rule  at  common  law  is  thus  stated  by 
Mr.  Justice  Somerville  for  the  court  in  Louisville  &c. 
Ry.  v.  Allen,  78  Ala.  494,  502 :  "  It  was  the  settled 
law  in  this  State,  prior  to  the  act  of  February  12, 1885, 
establishing  by  statute  a  contrary  rule,  that  the  employer 
is  not  liable  in  damages  for  any  injury  suffered  by  a 
fellow-servant  by  reason  of  the  faults  or  negligence  of 
another  fellow-servant  or  co-employee  in  the  same  gen- 
eral business,  unless  such  employer  was  chargeable  with 
want  of  due  care  in  having  employed  incompetent  or 
unskilful  servants  in  the  particular  business  in  which 
the  injury  was  received." 

In  Mobile  &c.  Ry.  v.  Smith,  59  Ala.  245,  it  was  held 
that  the  general  manager  and  superintendent  of  a  rail- 
road company  was  a  fellow-servant  with  a  locomotive 
fireman,  within  the  meaning  of  this  rule,  and  that  there- 
fore the  common  employer,  the  railroad  company,  was 
not  liable  to  the  fireman  for  an  injury  caused  through 
the  negligence  of  the  general  manager  and  superin- 
tendent. 

§  51.  Same. 

In  England,  until  the  passage  of  the  Employers'  Lia- 
bility Act  of  1880,  a  like  rule  prevailed  at  common  law.2 

1  Citing  Mobile  &c.  Ry.  v.  Smith,  59  Ala.  245,  248  ;  and  Mobile  &c.  Ry. 
v.  Thomas,  42  Ala.  672. 

2  Wilson  v.  Merry,  L.  R.  1  H.  L.  Sc.  326  ;  Feltham  v.  England,  L.  R. 
2  Q,  B.  33. 


NEGLIGENCE  OF  SUPERINTENDENT.       71 

In  Howells  v.  Landore  Steel  Co.,  L.  R.  10  Q.  B.  62,  a 
coal-miner  was  killed  through  the  negligence  of  the 
manager  of  the  defendant's  mine  by  an  explosion  of 
fire-damp.  It  was  held  that  the  defendant  was  not 
liable.  Cockburn,  C.  J.,  says  on  page  64 :  "  Since  the 
case  of  Wilson  v.  Merry,  L.  R.  1  H.  L.  Sc.  326,  in  the 
House  of  Lords,  it  is  not  open  to  dispute  that,  in  gen- 
eral, the  master  is  not  liable  to  a  servant  for  the  negli- 
gence of  a  fellow-servant,  although  he  be  the  manager 
of  the  concern."  Blackburn,  J.,  says  on  pages  64,  65  : 
"  It  is  a  rule  of  law  that  the  master  who  employs  a  ser- 
vant (not  an  agent)  is  responsible  for  the  negligence  of 
that  servant  in  matters  in  which  he  is  employed ;  but 
there  is  this  exception,  which  has  been  established  by  a 
series  of  decisions,  that  with  regard  to  a  fellow-servant 
the  master  is  held  not  so  responsible,  because  this  neg- 
ligence is  to  be  taken  as  one  of  the  ordinary  risks 
which  the  servant  contemplates  and  undertakes  when 
entering  into  his  employment." 

In  Ohio,  however,  the  rule  generally  recognized  at 
common  law  has  been  repudiated  in  a  long  line  of  ably 
reasoned  decisions,  and  the  doctrine  of  "  superior  ser- 
vant "  established,  by  which  a  servant  who  is  placed  in 
control  over  another  servant  is  not  considered  a  fellow- 
servant,  and  the  common  employer  is  liable  to  the  latter 
for  an  injury  caused  through  the  negligence  of  the 
former.1 

1  Little  Miami  Ry.  v.  Stevens,  20  Ohio,  415  ;  Cleveland  &c.  Ry.  v. 
Keary,  3  Ohio  St.  201  ;  Mad  River  &c.  Ry.  v.  Barber,  5  Ohio  St.  541  ; 
Whaalon  v.  Mad  River  &c.  Ry.,  8  Ohio  St.  249  ;  Pittsburgh  &c.  Ry.  v. 
Devinney,  17  Ohio  St.  197  ;  Berea  Stone  Co.  v.  Kraft,  31  Ohio  St.  287  ; 
Lake  Shore  &c.  Ry.  v.  Lavalley,  36  Ohio  St.  221.  The  Kentucky  rule  is 
very  like  the  Ohio  rule.  Louisville  &c.  Ry.  v.  Collins,  2  Duvall  (Ky.), 
114. 


72  EMPLOYERS'  LIABILITY  ACTS. 

Rogers  v.  Ludlow  Manuf.  Co.,  144  Mass.  198,  201, 
202,  contains  a  concise  statement  of  the  views  of  dif- 
ferent courts  upon  this  question  at  common  law  by  Mr. 
Justice  Field,  as  follows :  — 

"  As  a  corporation  must  act  by  natural  persons,  and 
as  all  large  corporations  carry  on  their  business  by  means 
of  servants  of  different  grades,  it  is  manifest  that,  if 
it  is  held  that  these  are  all  fellow-servants,  and  that 
the  corporation  can  delegate  the  whole  duty  of  hiring 
and  superintending  its  servants,  and  of  providing  its 
machinery  and  of  keeping  it  in  repair,  to  one  or  more 
principal  servants,  such  as  superintendents  or  managers, 
the  corporation  may  escape  all  responsibility  for  injuries 
caused  by  defective  machinery,  except  in  the  few  cases 
where  it  can  be  shown  that  these  principal  servants  were 
incompetent,  or  that  the  directors  of  the  corporation,  or 
its  principal  officers,  knew  that  the  subordinate  servants 
were  incompetent,  or  that  the  machinery  was  defective. 
To  avoid  this  result,  some  courts  have  held  that  su- 
perintendents or  managers  are  not  fellow-servants  with 
the  men  employed  to  work  under  them,  or  that  servants 
employed  in  one  department  of  the  business  are  not 
fellow-servants  with  those  employed  in  another.  Other 
courts  have  held  that  they  are  all  fellow-servants,  but 
that  the  master  cannot  avoid  his  obligation  to  see  to  it 
that  reasonable  care  shall  be  exercised  in  procuring 
suitable  machinery,  in  keeping  it  in  repair,  and  in  hiring 
and  retaining  competent  servants,  by  employing  a  ser- 
vant to  do  these  things  for  him,  and  that  if  he  does 
employ  a  servant  for  this  purpose,  and  the  servant  does 
not  use  due  care,  the  master  is  responsible." 


NEGLIGENCE  OF  SUPERINTENDENT.       73 

§  52.  Who  are  "  Superintendents  "  within  the  Mean- 
ing of  the  Statute. 

In  Prendible  v.  Connecticut  River  Manuf.  Co.,  160 
Mass.  131,  the  plaintiff  was  injured  by  the  negligence 
of  one  Campbell.  The  evidence  for  the  plaintiff  was 
that  Campbell  was  the  foreman  of  a  gang  of  workmen 
engaged  in  piling  wood  for  the  defendant  in  the  yard 
of  its  sawmill ;  that  he  sometimes  worked  with  his  hands, 
but  worked  when  he  pleased  and  only  at  what  he 
pleased ;  that  even  when  he  was  at  work  he  was  also 
overseeing  the  men ;  that  he  placed  the  men  at  work ; 
and  that  he  hired  workmen  at  different  times.  Two  of 
the  defendant's  witnesses  also  testified  that  he  had  gen- 
eral authority  over  the  gang  of  workmen.  It  was  held 
that  the  jury  was  warranted  in  finding  that  Campbell's 
principal  duty  was  that  of  superintendence,  within  the 
meaning  of  the  statute,  and  that  the  common  employer 
was  liable  for  his  negligence  to  the  plaintiff. 

At  common  law,  Campbell  would  be  merely  a  fel- 
low-servant with  the  plaintiff,  for  whose  negligence  the 
defendant  would  not  be  liable.1 

In  Davis  v.  New  York  &c.  Ry.,  159  Mass.  532,  a  fore- 
man of  a  gang  of  workmen  engaged  in  track-repairing 
was  held  to  be  a  person  entrusted  with  and  exercising 
superintendence,  for  whose  negligence  in  failing  to  warn 
one  of  the  workmen  of  the  approach  of  a  train  the 
common  employer  was  liable  under  the  act.  At  com- 
mon law,  such  a  foreman  was  considered  a  fellow-work- 
man, for  whose  negligence  the  common  employer  was 
not  liable.2 

1  McGuerty  v.  Hale,  161  Mass.  51,  54  ;  Zeigler  v.  Day,  123  Mass.  152. 

2  Clifford  v.  Old  Colony  Ry.,  141  Mass.  564. 


74  EMPLOYEES'  LIABILITY  ACTS. 

A  foreman  in  charge  of  a  gang  of  seven  men  em- 
ployed in  pile-driving,  who  has  power  to  employ  and 
dismiss  men,  and  who  does  not  work  with  his  hands, 
but  directs  the  men,  is  a  superintendent  within  the 
meaning  of  the  Massachusetts  act,  although  there  is  a 

O  '  tj 

general   superintendent   over  him   in   the  defendant's 


service.1 


In  Mahoney  ».  New  York  &c.  Ry.,  160  Mass.  573,  it 
was  held  that  the  jury  would  be  justified  in  finding  that 
the  principal  duty  of  a  person  who  was  section  foreman 
of  a  gang  of  five  men  in  the  employ  of  a  railroad  cor- 
poration, and  under  whose  directions  the  plaintiff  was 
working  at  the  time  of  the  injury,  was  that  of  super- 
intendence within  the  Massachusetts  act  of  1887,  ch.  270. 

§  53.  Who  are  not  "  Superintendents "  within  the 
Meaning  of  the  Statute. 

The  statute,  however,  does  not  wholly  abolish  the 
defence  that  the  injury  was  caused  by  the  negligence 
of  a  fellow-servant,  but  merely  restricts  it.  There  are 
still  many  cases  in  which  this  defence  is  available  to  the 
common  employer. 

In  O'Connor  v.  Neal,  153  Mass.  281,  284,  Mr.  Jus- 
tice Morton,  for  the  court,  says  :  — 

"  The  statute  [Employers'  Liability  Act]  does  not 
apply  to  a  mere  laborer  working  under  or  with  others, 
even  though  it  may  be  a  part  of  his  duty  at  some 
particular  moment  in  the  progress  of  the  work  to  look 
after  and  attend  to  certain  instrumentalities." 

In  O'Connor  v.  Neal,  ubi  supra,  a  mason  was  injured 
through  the  negligence  of  an  ordinary  workman  in 

1  McPhee  v.  Scully,  163  Mass.  216. 


NEGLIGENCE  OF  SUPEEINTENDENT.       75 

placing  one  end  of  a  staging  unevenly  on  the  floor,  so 
that  it  tipped  when  the  plaintiff  stepped  upon  it,  and 
caused  him  to  fall.  It  was  held  that  the  workman  was 
a  fellow-servant  of  the  plaintiff,  for  whose  negligence 
their  common  employer  was  not  liable  to  the  plaintiff, 
either  at  common  law  or  under  the  statute. 

In  Alabama  the  rule  has  been  thus  stated  by  Mr. 
Chief  Justice  Stone  :  "  To  be  actionable  under  that  part 
of  the  statute  which  controls  this  case  (Code,  §  2590, 
subd.  2),  the  injury  must  be  caused  by  the  negligence 
of*6ome  person  in  the  service  or  employment  of  the 
master  or  employer,  6  who  has  superintendence  intrusted 
to  him,  while  in  the  exercise  of  such  superintendence.' 
To  hold  the  master  or  employer  liable  under  this  pro- 
vision, the  negligence  must  be  that  of  some  agent  or 
employee  who  is  in  the  exercise  of  superintendence,  and 
to  whose  negligence  in  such  exercise  the  disaster  is 
traced.  To  hold  otherwise  would  be  to  fasten  liability 
on  the  principal  to  the  employee  for  that  which  is  at 
most  the  negligence  of  a  fellow-servant  having  no 
greater  power  or  authority  than  the  servant  who 
complains  of  the  injury.  This  the  statute  does  not 
authorize."  1 

In  O'Brien  v.  Rideout,  161  Mass.  170,  a  man  who 
had  worked  upon  a  circular  saw  six  or  seven  times,  and 
had  been  hired  as  a  common  laborer,  was  set  to  work 
upon  the  saw  by  the  defendant's  foreman.  The  plaintiff 
testified  that  this  foreman  "  kept  himself  at  work  pretty 
much  all  the  time  in  getting  out  lumber,  or  piling  it  up, 
or  arranging  it,  and  in  operating  saws."  It  was  held 
that  such  evidence  would  not  justify  a  finding  that  the 

1  Sheffield  v.  Harris,  101  Ala.  564,  569,  570  ;  14  So.  Rep.  357,  358. 


76  EMPLOYERS'  LIABILITY  ACTS. 

foreman  was  a  person  whose  sole  or  principal  duty  was 
that  of  superintendence  within  the  terms  of  the  Massa- 
chusetts statute ;  and  that  the  foreman  was  merely  a 
fellow-servant  with  the  plaintiff,  for  whose  negligence 
the  defendant  was  not  liable,  either  at  common  law  or 
under  the  Employers'  Liability  Act. 

§  54.  Same.     "  Sole  or  Principal "  Duty. 

Evidence  that  an  employee  exercised  some  acts  of 
superintendence  within  a  narrow  scope  of  employment 
will  not  warrant  a  finding  that  his  "  sole  or  principal " 
duty  was  that  of  superintendence,  as  required  by  the 
Massachusetts  statute  of  1887. 

In  Dowd  v.  Boston  &  Albany  Ry.,  162  Mass.  185, 
the  plaintiff  was  injured  by  the  negligence  of  one  Mc- 
Donald. It  appeared  that  McDonald,  in  the  absence  of 
the  superintendent  and  foreman,  gave  directions  to  the 
plaintiff  and  to  other  workmen,  but  that  he  worked  with 
his  hands  and  drew  the  same  wages  as  the  plaintiff 
and  the  ordinary  workmen,  and  that  he  received  orders 
from  the  foreman  and  from  the  general  superintendent. 
It  was  held  that  a  verdict  was  properly  ordered  for  the 
defendant,  as  the  evidence  was  not  sufficient  to  justify 
a  finding  that  McDonald's  "  sole  or  principal "  duty 
was  that  of  superintendence.1 

In  O'Neil  v.  O'Leary,  164  Mass.  387,  the  question 
was  whether  "  the  sole  or  principal  duty  "  of  one  Mc- 
Donald was  that  of  superintendence.  It  appeared  that 

1  See,  also,  Shepard  v.  Boston  &  Maine  Ry.,  158  Mass.  174. 

The  injury  in  Dowd  v.  Boston  &  Albany  Ry.  (supra)  probably  occurred 
before  the  passage  of  St.  1894,  ch.  499,  §  1,  imposing  a  liability  for  the 
negligence  of  an  acting  superintendent. 


NEGLIGENCE  OF  SUPERINTENDENT.       77 

he  was  entrusted  with,  and  was  exercising  the  duty  of, 
superintending  certain  blasting  operations,  by  one  of 
which  the  plaintiff  was  injured.  But  the  undisputed 
evidence  showed  that  McDonald  also  worked  with  his 
own  hands  in  attending  to  the  fire  under  the  steam- 
boiler,  in  sharpening  all  the  tools  used  by  the  workmen, 
in  charging  the  drill-holes  and  in  clearing  them  out,  and 
in  other  acts  of  manual  labor,  which  altogether  occupied 
most  of  his  time.  It  was  held  by  a  majority  of  the 
court  that  this  evidence  would  not  warrant  a  finding 
that  McDonald's  "  sole  or  principal "  duty  was  that  of 
superintendence,  and  that  a  verdict  should  have  been 
ordered  for  the  defendant.  In  the  opinion,  by.  Mr. 
Justice  Lathrop,  it  is  said  on  pages  390,  391 :  "  In  a 
sense  it  is  undoubtedly  true  that  superintendence  is 
more  important  than  manual  labor,  and  so,  if  superin- 
tendence is  entrusted  to  a  man  who  also  works  with  his 
hands,  it  may  be  said  that  his  principal  duty  is  that  of 
superintendence.  But  if  the  statute  had  intended  that 
every  person  exercising  superintendence  should  not  be 
considered  a  fellow-servant  with  a  person  injured,  there 
would  have  been  no  need  of  the  words  i  whose  sole  or 
principal  duty  is  that  of  superintendence.'  These  words 
must  have  a  reasonable  interpretation  given  to  them ; 
and  a  majority  of  the  court  is  of  opinion  that  it  cannot 
be  said  of  a  person  who  works  at  manual  labor,  to  the 
extent  shown  in  this  case,  that  his  principal  duty  is  that 
of  superintendence." 

A  like  rule  prevails  under  the  English  act.  In  Kel- 
lard  v.  Rooke,  21  Q.  B.  D.  367,  the  plaintiff  was  injured 
through  the  negligence  of  one  Bodfield  in  failing  to 
notify  him  that  a  bale  of  wool  was  about  to  be  dropped 


78  EMPLOYERS'  LIABILITY  ACTS. 

down  into  the  hold  of  a  vessel  where  the  plaintiff  was 
at  work.  Bodfield  was  the  foreman  of  a  gang  of  labor- 
ers among  whom  the  plaintiff  worked.  The  defendant 
generally  superintended  such  work  in  person,  but,  as 
he  was  temporarily  absent,  Bodfield,  who  worked  witli 
his  hands  on  deck,  was  authorized  to  warn  the  men 
below  when  the  bales  were  ready  to  drop  by  calling  out, 
"  Stand  from  under."  It  was  held  that  Bodfield  was 
not  a  superintendent  within  the  meaning  of  the  act, 
and  that  a  nonsuit  was  properly  ordered. 

§  55.  Same.     Charge  or  Control  does  not  render «one 
a  Superintendent. 

The  fact  that  the  negligent  employee  has  the  charge 
or  control  of  the  ways,  works,  machinery,  or  plant  does 
not  make  him  a  superintendent  within  the  meaning  of 
these  clauses.1  In  this  respect  the  employer's  liability 
differs  materially  from  that  of  a  railroad  employer.2 

In  Shaffers  v.  General  Steam  Navigation  Co.,  10 
Q.  B.  D.  356,  the  plaintiff,  while  working  in  the  hold 
of  a  vessel,  was  hit  by  a  sack  of  corn,  which  fell  down 
the  hatchway  through  the  negligence  of  one  Jones. 
The  bags  were  lowered  into  the  hold  of  the  ship  by 
means  of  a  crane,  and  it  was  Jones's  duty  to  guide  the 
beam  of  the  crane  by  a  guy-rope,  and  to  give  directions 
to  the  man  working  the  crane  when  to  lower  and  when 

1  Shaffers  v.  General  Steam  Navigation  Co.,  10  Q.  B.  D.  356  ;  Kellard 
v.  Rooke,  19  Q.  B.  D.  585  ;  s.  c.,  21  Q.  B.  D.  367 ;  Roseback  v.  ^Etiia 
Mills,  158  Mass.  379  ;  Dantzler  v.  De  Bardeleben  Coal  Co.,  101  Ala.  309  ; 
8.  c.,  14  So.  Rep.  10. 

2  See  ch.  v.,  §§  69,  75-81,  on  the  liability  of  railroad  companies  to 
their  employees  for  the  negligence  of  persons  in  the  charge  or  control  of 
certain  railroad  appliances. 


NEGLIGENCE  OP  SUPERINTENDENT.       79 

to  hoist.  At  the  time  of  the  accident,  Jones  failed  to 
check  the  swing  of  the  crane's  beam,  in  consequence  of 
which  the  sacks  struck  the  combing  of  the  hatchway, 
were  thrown  out  of  the  sling,  and  fell  down  the  hatch- 
way and  broke  the  plaintiff's  leg.  It  was  contended 
that,  as  Jones  had  the  charge  of  the  crane,  the  jury 
would  be  justified  in  finding  that  he  was  a  superintend- 
ent within  the  meaning  of  the  act,  but  the  court  held 
the  contrary  and  nonsuited  the  plaintiff. 

In  Roseback  v.  JStna  Mills,  158  Mass.  379,  a  loom- 
fixer  was  injured  by  the  starting  up  of  a  loom  by  the 
weaver.  He  had  been  notified  to  fix  a  slight  defect  in 
the  loom,  and  while  in  the  act  of  fixing  it  the  weaver 
started  the  loom.  The  weaver  had  operating  charge 
and  control  of  the  loom,  and  when  it  got  out  of  repair 
it  was  her  duty  to  notify  the  loom-fixer  to  put  it  in 
order.  The  plaintiff  contended  that  the  weaver  was 
a  person  "entrusted  with  and  exercising  superintend- 
ence," etc.,  within  the  Employers'  Liability  Act,1  because 
she  had  the  charge  and  control  of  the  loom.  But  the 
court  held  that  she  was  no  more  than  the  plaintiff's 
fellow-servant,  and  that  he  could  not  recover  of  their 
common  employer  tinder  the  statute. 

In  Dantzler  v.  De  Bardeleben  Coal  Co.,  101  Ala. 
309 ;  14  So.  Rep.  10,  one  McKay  was  killed  while  in- 
side of  a  blowing  cylinder  or  tub,  repairing  it,  through 
the  negligence  of  one  Gould  in  failing  to  keep  the 
blowing-engine  disconnected  with  the  steam  supply. 

1  This  clause  of  the  act  is  not  so  broad  as  that  relating  to  railroads, 
which  gives  a  right  of  action  for  the  negligence  of  any  person  who  has 
"  the  charge  or  control  of  any  signal,  switch,  locomotive  engine,  or  train 
upon  a  railroad." 


80  EMPLOYERS'  LIABILITY  ACTS. 

Gould  was  an  engineer,  and  had  charge  of  five  blowing 
engines,  including  the  one  in  which  McKay  was  killed. 
He  had  the  aid  of  a  helper,  who  worked  under  him, 
but  he  operated  the  machines  with  his  own  hands,  as 
directed  by  persons  superior  to  him  in  the  service.  In 
an.  action  under  the  statute  by  McKay's  personal  repre- 
sentative, it  was  held  that  Gould  was  not  a  superintend- 
ent within  the  meaning  of  the  act,  but  was  merely  a 
fellow-servant  with  McKay,  for  whose  negligence  the 
common  employer  was  not  liable. 

Other  cases  under  the  statute,,  in  which  it  was  held 
that  the  plaintiff  could  not  recover  because  his  injury 
was  caused  by  the  negligence  of  his  fellow-servant,  are 
cited  in  the  note.1 

§  56.  Negligence  of  Employer  and   Superintendent. 

In  an  action  to  recover  damages  for  the  negligence  of 
a  superintendent  under  the  statute,  the  employer  cannot 
escape  liability  by  showing  that  his  own  act  contributed 
to  the  injury. 

In  Connolly  v.  City  of  Waltham,  156  Mass.  368,  a 
laborer  employed  upon  the  defendant's  water-works  was 
injured  by  the  caving  in  of  a  trench  while  he  was  at 
work  upon  it.  The  defendant's  superintendent  was 
negligent  in  failing  to  sheet  and  brace  the  trench,  and 
in  permitting  earth  to  be  piled  upon  the  bank ;  but  the 
defendant  contended  that,  inasmuch  as  it  had  not  fur- 
nished its  superintendent  with  materials  for  bracing  the 
trench,  he  was  not  negligent  in  failing  to  brace  it,  and 
that  therefore  it  was  not  liable  on  a  count  alleging  negli- 

1  Ashley  v.  Hart,  147  Mass.  573 ;  Thyng  v,  Fitchburg  Ry.,  156  Mass. 
13  ;  Shepard  v,  Boston  &  Maine  Ry.,  158  Mass.  174. 


NEGLIGENCE  OF  SUPERINTENDENT.       81 

gence  of  the  superintendent.  But  the  court  held  that 
this  was  too  narrow  a  view  of  the  case ;  that,  if  the 
superintendent  "  knew,  or  had  reason  to  know,  that 
there  was  danger  of  the  caving  of  the  trench,  and  had 
no  materials  for  bracing  it,  and  no  power  to  procure 
them,  due  care  required  him  to  stop  the  work  until 
suitable  materials  were  furnished ;  and  it  was  personal 
negligence  in  his  work  of  superintendence  to  allow  the 
digging  to  go  on  before  the  necessary  materials  were 
procured.  For  such  negligence  of  a  superintendent 
the  principal  is  answerable,  and  cannot  escape  liability 
by  showing  that  it  was  by  his  own  act.  and  not  by  the 
fault  of  the  superintendent,  that  suitable  materials  were 
wanting."  Per  Barker,  J.,  page  370.  • 

§  57.    What  is  Negligence  of  Superintendent.     Ala- 
bama Cases. 

A  superintendent's  negligence  may  consist  in  know- 
ingly allowing  the  employer's  ways,  works,  machinery, 
or  plant  to  be  and  remain  in  a  defective  condition. 
Thus,  in  Seaboard  Manuf .  Co.  v.  Woodson,  94  Ala.  143, 
a  locomotive  fireman  was  injured  by  the  starting  of  the 
engine  while  he  was  underneath  it  oiling  and  cleaning 
it.  The  defect  which  caused  the  engine  to  start  was 
that  the  throttle-valve  leaked,  which  allowed  the  steam 
to  pass  through  into  the  cylinders,  and  thus  caused 
the  engine  to  move  off  without  notice  to  the  plaintiff. 
One  count  alleged  that  the  plaintiff  was  injured  by 
reason  of  the  negligence  of  the  defendant's  foreman, 

O      O  x 

who  was  entrusted  by  the  defendant  with  the  exercise 
of  superintendence  over  the  plaintiff,  said  railroad,  its 
engine,  and  cars ;  that  the  negligence  of  said  foreman 


82  EMPLOYERS'  LIABILITY  ACTS. 

consisted  in  knowingly  allowing  said  engine  to  be  and 
remain  in  a  defective  condition  ;  and  that  the  defect 
was  a  leaky  throttle-valve,  etc.  On  demurrer  it  was  held 
that  this  count  stated  a  good  cause  of  action  under  the 
second  subdivision  of  section  2590  of  the  Alabama  Code. 
Mr.  Justice  Walker,  for  the  court,  says  on  page  148  : 
"  Here  there  is  an  explicit  averment  of  the  negligence 
of  a  person  intrusted  with  a  superintendence  by  the 
employer ;  it  is  shown  that  he  was  guilty  of  such  negli- 
gence whilst  in  the  exercise  of  such  superintendence, 
and  that  the  injury  was  caused  by  reason  of  the  omis- 
sion of  duty  which  was  described  as  negligent.  These 
averments  brought  the  charge  within  the  terms  of  the 
statute,  and  were  sufficiently  explicit." 

It  seems  that  knowledge  of  the  defect  by  the  defend- 
ant's superintendent  is  not  essential  to  render  the 
employer  liable.  In  an  action  under  the  first  clause 
of  section  2590  for  an  injury  caused  by  a  defective 
brake  on  a  railroad  car,  it  was  held  that  the  plaintiff 
need  not  allege  or  prove  knowledge  by  the  defendant 
of  the  defect  in  the  brake.1 

The  act  of  a  yard-master  of  a  railroad  company  in 
placing  a  car  on  a  side  track  so  near  to  a  main  track  as 
to  knock  a  brakeman  off  a  train  on  the  latter  track, 
while  he  is  in  the  ordinary  discharge  of  his  duty,  is 
actionable  negligence  for  which  the  common  employer 
is  liable  under  the  superintendence  clause  of  the  Ala- 
bama statute.2 

The  act  and  omission  of  the  superintendent  in  charge 
of  the  construction  of  a  railroad  bridge,  in  placing 

1  Louisville  &c.  Ry.  v.  Coulton,  86  Ala.  129. 

2  Kansas  City  &c.  Ry.  v.  Burton,  97  Ala.  240. 


NEGLIGENCE  OF  SUPERINTENDENT.       83 

certain  heavy  timbers  upright  and  allowing  them  to 
stand  upright  unsecured,  are  negligence  for  which  the 
employer  is  liable  to  an  employee  who  is  injured  by 
the  fall  of  the  timbers.1 

§  58.  Same.    Massachusetts  Cases. 

A  superintendent's  negligence  may  also  consist  in 
the  failure  to  take  proper  precautions  to  protect  em- 
ployees who  are  engaged  in  the  process  of  constructing 
the  defendant's  ways,  works,  machinery,  or  plant. 

In  Hennessy  v.  Boston,  161  Mass.  502,  the  plaintiff, 
while  digging  a  sewer  trench  in  the  streets  of  Boston, 
was  injured  by  the  caving  in  of  its  sides.  The  trench 
was  about  thirty  or  forty  feet  long,  twelve  or  thirteen 
feet  deep,  three  feet  wide  at  the  top,  and  about  one  and 
a  half  feet  wide  at  the  bottom.  There  was  no  bracing, 
except  two  blocks  of  earth  about  four  feet  wide  and 
about  twenty-five  feet  apart.  There  was  a  foreman  in 
charge  of  the  work,  whose  sole  or  principal  duty  was 
that  of  superintendence.  In  an  action  under  the  stat- 
ute, it  was  held  that  there  was  evidence  from  which  the 
jury  might  have  found  that  the  foreman  was  guilty  of 
negligence,  and  that  the  presiding  judge  erred  in  order- 
ing a  verdict  for  the  defendant.2 

In  O'Keefe  v.  Brownell,  156  Mass.  131,  a  workman 
engaged  in  labor  upon  a  school-house  in  process  of 
erection  was  killed  by  a  heavy  truck  falling  upon  his 
head  through  an  opening  in  the  floor  above  him.  The 

1  Collier  v.  Coggins,  103  Ala.  000  ;  15  So.  Rep.  578. 

2  If  this  action  had  not  been  under  the  statute,  but  at  common  law,  the 
plaintiff  could  not  have  recovered  of  the  defendant,  because  the  foreman 
was  merely  a  fellow-servant  of  the  plaintiff.     Zeigler  v.  Day,  123  Mass. 
152. 


84  EMPLOYEES'  LIABILITY  ACTS. 

truck  was  a  movable  tool  designed  for  rolling  loads 
from  one  part  of  the  same  floor  to  another.  When  not 
in  use,  it  could  be  easily  blocked  by  nails  or  bits  of 
wood  suitable  for  cleats ;  but  when  in  use  in  this  way 
no  cleats,  of  course,  could  be  used  without  destroying 
its  usefulness.  While  stationary  and  in  use  by  a  fellow- 
workman  in  landing  heavy  planks,  the  truck  fell  through 
an  opening  in  the  floor  and  injured  the  plaintiff's 
intestate. 

In  an  action  under  the  statute  the  plaintiff  contended 
that  the  omission  to  use  some  appliance  for  blocking  the 
truck  was  negligence  of  a  superintendent,  or  was  a  want 
of  superintendence  on  the  employer's  part,  and  also  that 
the  absence  of  blocking  appliances  constituted  a  defect 
in  the  condition  of  the  defendant's  machinery.  But 
the  court  held  that  the  employer  was  not  liable  upon 
either  ground ;  that  the  omission  to  use  a  blocking 
appliance  at  the  time  of  the  injury  was  the  negligence 
of  a  fellow-servant,  and  not  of  a  superintendent,  or  of  a 
want  of  superintendence ;  and  that  the  absence  of  such 
appliance  as  a  permanent  attachment  to  the  truck  was 
not  a  defect  in  the  tools  or  machine. 

The  failure  of  a  superintendent  to  discover  that  a 
ledge  stone  had  been  left  for  two  or  three  days  on  a 
staging  in  such  a  position  as  to  be  liable  to  fall  from 
a  slight  jar,  when  its  position  could  only  be  seen  from 
above  the  staging,  is  not  negligence  for  which  the  com- 
mon employer  is  liable  to  a  workman  injured  by  the  fall 
of  the  stone.1  Nor  is  the  common  employer  liable  under 
the  statute  for  the  failure  of  his  superintendent  to  warn 

1  Carroll  v.  Willcutt,  163  Mass.  221. 


NEGLIGENCE  OF  SUPERINTENDENT.       85 

the  plaintiff  of  a  danger  or  defect  with  which  he  (the 
plaintiff)  was  previously  acquainted.1 

§  59.  Negligence  must  be  an  Act  of  Superintendence. 

In  order  to  recover  damages  of  an  employer  for  the 
negligence  of  his  superintendent,  it  must  appear  that 
the  negligence  occurred  in  the  exercise  of  superintend- 
ence :  it  is  not  sufficient  to  show  that  the  negligence 
occurred  merely  during  the  period  of  superintendence. 
The  act  complained  of  must  be  an  act  of  superintend- 
ence ;  otherwise  an  action  cannot  be  maintained  under 
the  statute.  A  few  illustrations  on  both  sides  of  the 
line  will  render  the  distinction  clear. 

In  McCauley  v.  Norcross,  155  Mass.  584,  a  workman 
engaged  upon  the  second  floor  of  a  building  in  process 
of  erection  was  injured  by  the  fall  of  an  iron  beam 
upon  him  through  an  opening  in  the  floor  above.  The 
beam,  with  several  others,  had  been  placed  on  the  third 
floor,  about  three  and  a  half  feet  from  the  opening,  two 
or  three  days  prior  to  the  injury,  and  had  been  allowed 
to  remain  there.  The  defendant's  superintendent,  while 
walking  about  this  floor,  and  in  order  to  pass  between 
the  beams  and  a  pile  of  planks,  pushed  the  beam  with 
his  foot,  whereupon  it  swung  around  upon  the  other 
beams  and  fell  through  the  hole  in  the  floor  upon  the 
plaintiff.  In  an  action  under  the  statute,  it  was  held 
that  the  fact  that  it  was  the  superintendent  himself 
who  pushed  the  beam  was  of  no  importance,  because 
that  was  not  an  act  of  superintendence ;  but  that  the 
jury  was  warranted  in  finding  a  lack  of  proper  superin- 
tendence, for  which  the  defendant  was  liable,  from  the 

1  Perry  v.  Old  Colony  Ry.,  164  Mass.  296. 


86  EMPLOYERS'  LIABILITY  ACTS. 

circumstance  that  the  beams  were  allowed  to  remain 
in  such  a  position  for  two  or  three  days,  —  a  position 
in  which  a  slight  inadvertent  push  of  the  foot  by  a 
passer-by  would  send  the  beam  through  the  opening. 

The  act  of  a  foreman  of  a  gang  of  workmen  engaged 
in  pile-driving,  in  giving  the  order  to  "  hoist  again  " 
when  the  gypsy  fall  was  foul  of  the  chocking-block, 
whereby  the  hammer  was  released  and  the  plaintiff  in- 
jured, is  an  act  of  superintendence,  for  which  the  em- 
ployer is  liable  under  the  Massachusetts  act.1  So,  also, 
allowing  the  gypsy  fall  to  be  handled  by  a  workman 
obviously  intoxicated  at  the  time,  who  allowed  the  fall 
to  get  foul  of  the  block,  is  an  act  of  superintendence 
within  the  meaning  of  that  statute.2 

In  Fitzgerald  v.  Boston  &  Albany  Ry.,  156  Mass. 
293,  the  plaintiff  was  injured  while  stowing  away  hay 
in  the  defendant's  hay-shed  by  the  fall  of  a  bale  of 
hay  upon  him.  It  did  not  appear  what  caused  the  hay 
to  fall,  nor  that  the  defendant's  superintendent  knew, 
or  ought  to  have  known,  that  the  hay  was  liable  to  fall. 
In  an  action  under  the  statute,  it  was  held  that  there 
was  no  evidence  to  justify  a  finding  that  the  superin- 
tendent was  negligent,  and  that  a  verdict  was  properly 
ordered  for  the  defendant.  The  reason  assigned  was 
that  the  negligence  complained  of  did  not  occur  in  the 
exercise  of  superintendence,  even  if  it  occurred  during 
the  superintendence. 

Where  the  article  causing  the  injury  is  of  such  a 
nature  that  the  law  does  not  require  the  employer  to 
inspect  it  before  allowing  it  to  be  used  by  his  em- 

1  McPhee  v.  Scully,  163  Mass.  216. 

2  McPhee  v.  Scully,  163  Mass.  216. 


NEGLIGENCE  OF  SUPERINTENDENT.       87 

ployees,  the  failure  of  the  defendant's  superintendent 
to  discover  an  apparent  defect  therein,  before  giving  it 
to  the  plaintiff  for  use,  does  not  render  the  defendant 
liable  under  the  statute,  at  least  where  it  is  outside  the 
superintendent's  field  of  superintendence.  Thus,  in 
Shea  v.  Wellington,  163  Mass.  364,  the  plaintiff,  while 
blasting  in  a  quarry,  was  injured  by  an  explosion  of 
dynamite  in  a  drill-hole  which  he  was  loading,  caused, 
as  he  alleged,  through  the  negligence  of  the  defend- 
ant's superintendent,  Watson,  in  furnishing  him  with  a 
defective  exploder.  The  plaintiff  testified  that,  on  the 
day  of  the  accident,  Watson  handed  him  seven  explod- 
ers to  be  used  in  loading  seven  holes,  and  that  one  of 
them  he  picked  at  with  his  finger-nail  and  said,  "  I  guess 
that  is  all  right ;  "  that  the  plaintiff  saw  a  seam  in  the 
copper  covering  of  the  exploder,  through  which  he  no- 
ticed a  white  substance.  There  was  evidence  from  other 
witnesses  to  the  effect  that,  if  there  was  a  seam  in  the 
exploder  through  which  the  fulminate  of  mercury  could 
be  seen,  it  would  adequately  account  for  the  accident. 
The  defendant  bought  his  exploders  ready-made  from 
a  reputable  manufacturer.  It  was  no  part  of  Watson's 
duty  to  inspect  exploders,  nor  had  he  ever  done  so 
with  the  defendant's  knowledge  and  consent.  It  was 
held  that  the  defendant  was  not  bound  to  inspect  the 
exploders  before  using  them,  and  that,  if  Watson  was 
negligent  in  not  discovering  the  defect,  his  negligence 
was  that  of  an  ordinary  employee,  and  not  that  of  a 
superintendent,  and  that  the  defendant  was  not  liable. 


88  EMPLOYERS     LIABILITY    ACTS. 

§  60.  Superintendent  doing  Work  of  Common  La- 
borer. 

Although  the  negligence  causing  the  injury  is  that 
of  a  person  "  entrusted  with  and  exercising  super- 
intendence "  within  the  terms  of  the  Massachusetts 
statute,  still  if,  at  the  time  of  and  in  doing  the  act 
complained  of,  he  is  merely  doing  the  work  of  a  com- 
mon laborer,  the  employer  is  not  liable.  "  The  law 
recognizes  that  an  employee  may  have  two  duties : 
that  he  may  be  a  superintendent  for  some  purposes, 
and  also  an  ordinary  workman,  and  that  if  negligent 
in  the  latter  capacity,  the  employer  is  not  answerable."  l 

For  the  above  reasons  it  was  held  that  an  employer 
was  not  liable  for  the  negligence  of  his  engineer,  who 
raised  a  fall,  which  swung  into  the  hold  of  a  vessel  and 
to  which  a  hook  was  attached,  when  he  was  ordered  to 
lower  it,  whereby  the  hook  was  pulled  out  of  a  work- 
man's hands  and  struck  the  plaintiff.  The  engineer 
employed  the  men,  showed  them  how  to  do  the  work, 
and  discharged  them.  Upon  these  facts  the  court  held 
that  it  might  be  competent  for  the  jury  to  find  that 
the  engineer  was  to  some  extent  a  superintendent ;  but 
that,  as  he  was  acting  merely  as  an  ordinary  workman 
at  the  time  of  his  negligence,  the  plaintiff  could  not 
recover.2 

On  the  other  hand,  the  employer  may  be  liable  under 
the  act  for  the  negligent  order  of  his  superintendent, 

1  Per  Barker,  J.,  in  Cashman  i>.  Chase,  156  Mass.  342,  344.     See,  also, 
Shaffers  v.  General  Steam  Nav.  Co.,  10  Q.  B.  D.  356  ;  Kellard  v.  Rooke, 
19  Q.  B.  D.  585,  and  21  Q.  B.  D.  367. 

2  Cashman  v.  Chase,  156  Mass.  342. 


NEGLIGENCE  OF  SUPERINTENDENT.       89 

although  at  the  time  of  the  plaintiff's  injury  the  super- 
intendent is  performing  manual  labor.  In  Osborne  v. 
Jackson,  11  Q.  B.  D.  619,  the  plaintiff,  a  bricklayer  in 
defendant's  employ,  was  working  near  a  shoring  while 
a  scaffold  was  being  taken  down  by  others.  The  de- 
fendant's foreman,  one  Thomas,  while  holding  one  end 
of  a  plank,  called  to  one  Collier  to  take  hold  of  the 
other  end.  Collier  took  hold  of  the  plank,  but  was  so 
far  off  that  he  could  not  hold  it  alone,  and  as  soon  as 
Thomas  let  go  his  end  the  plank  slipped  and  knocked 
down  the  shoring,  which  fell  upon  the  plaintiff  and 
caused  the  injury  complained  of.  It  was  held  that  the 
defendant  was  liable.  Denman,  J.,  says  on  page  620  : 
"  The  decision  in  Shaffers  v.  General  Steam  Navigation . 
Co.,  10  Q.  B.  D.  356,  was  decided  on  grounds  which 
do  not  apply  here.  The  negligent  person  there  had 
two  duties,  and  was  not  negligent  in  his  duty  of  super- 
intendence so  as  to  cause  the  accident.  In  the  present 
case  the  foreman  was  generally  superintending  the  work 
on  which  the  plaintiff  and  Collier  were  employed.  The 
foreman  called  to  Collier,  who  was  under  his  orders,  to 
take  the  plank  when  it  was  impossible  to  do  so  safely ; 
that  was  superintendence,  and  the  judge  might  find, 
and  has  found,  that  it  was  negligence  within  the  mean- 
ing of  sub-section  2.  I  think  it  was  so,  although 
Thomas  was  at  the  time  supplying  as  a  volunteer  the 
place  of  another  workman."  Hawkins,  J.,  says  on  page 
621 :  "  If  Thomas  had  directed  another  to  do  what  he 
did  himself,  he  would  surely  have  been  negligent  in  the 
exercise  of  superintendence." 


90  EMPLOYERS'  LIABILITY  ACTS. 

§  61.  Temporary  Absence  of  Superintendent. 
It  is  well  settled  that,  when  the  ground  of  liability  is 
the  negligence  of  a  superintendent,  the  negligence  must 
occur  not  only  during  the  period  of  superintendence, 
but  also  in  the  exercise  of  it.1  The  negligence,  how- 
ever, may  consist  in  his  temporary  absence  from  his  post 
of  duty,  and  this  is  considered  to  be  negligence  in  the 
exercise  of  superintendence  within  the  rule  of  liability. 
In  Lynch  v.  Allyn,  160  Mass.  248,  the  plaintiff  was 
injured  by  the  falling  of  a  bank  of  earth  upon  him 
while  he  was  undermining  it,  and  during  the  temporary 
absence  of  the  superintendent,  whose  duty  it  was  to 
look  after  the  bank  and  the  men.  The  bank  was  not 
shored  up  in  any  way,  and  when  the  superintendent 
left  the  spot  he  failed  to  station  any  one  there  to  give 
warning  of  the  'danger.  It  was  held  that  it  could  not 
be  ruled  as  matter  of  law  that  the  superintendent  was 
not  negligent,  and  that  it  was  a  question  for  the  jury 
to  decide. 

§  62.  Instructions  upon  Matters  of  Detail. 

In  the  prosecution  of  work  there  are  many  matters  of 
detail  which  devolve  upon  the  common  laborer  and  not 
upon  the  superintendent.  In  such  matters  the  failure 
of  the  superintendent  to  give  special  instructions  is  not 
such  negligence  on  his  part  as  will  render  the  employer 
liable  to  an  employee  who  is  injured  through  the  negli- 
gence of  a  fellow-servant. 

In  Burns  v.  Washburn,   160  Mass.  457,  a  mason's 

1  Fitzgerald  v.  Boston  &  Albany  Ry.,  156  Mass.  293  ;   Cashman  v. 
Chase,  156  Mass.  342  ;  ante,  §  59. 


NEGLIGENCE  OF  SUPERINTENDENT.       91 

tender  was  injured  by  a  staging  falling  upon  him.  The 
immediate  cause  of  its  fall  was  the  negligence  of  one  of 

O       O 

the  masons  in  driving  but  one  nail  in  the  end  of  a  board 
instead  of  several  nails.  The  defendant's  superintend- 
ent told  the  masons  to  build  a  certain  piece  of  wall, 
leaving  them  to  construct  their  stagings  without  instruc- 
tions. The  plaintiff  claimed  that  this  failure  to  instruct 
the  masons  how  to  build  their  stagings,  and  his  absence 
during  their  building,  was  negligence  of  the  superin- 
tendent within  the  meaning  of  the  act,  for  which  the 

O  * 

employer  was  liable.  But  the  court  held  that  the  plain- 
tiff could  not  recover.  In  delivering  the  opinion  of  the 
court,  Mr.  Justice  Lathrop  says  on  page  458 :  — 

"  The  mere  fact  that  the  superintendent  gave  no 
instructions  as  to  the  staging  cannot  be  said  to  be  evi- 
dence of  negligence  on  his  part.  No  instructions  were 
needed.  The  masons  were  accustomed  to  build  their 
own  stagings,  and  probably  knew  as  much  about  the 
proper  way  of  constructing  them  as  the  superintendent. 
Nor  is  the  fact  that  the  superintendent  was  not  pres- 
ent while  the  staging  was  building  of  itself  evidence 
of  negligence  on  his  part.  A  general  superintendent 
of  a  building  cannot  be  expected  to  be  present  as  every 
detail  of  the  work  is  done." 1 

§  63.  Conflicting  Evidence  as  to  whether  Person  caus- 
ing Injury  is  a  Superintendent :  Jury  to  decide. 

If  the  plaintiff's  evidence  tends  to  show  that  the 
person  whose  negligence  caused  the  plaintiff's  injury  is 
a  superintendent  within  the  meaning  of  the  statute,  and 
the  evidence  for  the  defendant  tends  to  show  that  such 

1  Citing  Fitzgerald  v.  Boston  &  Albany  Ry.,  156  Mass.  293. 


92  EMPLOYERS'  LIABILITY  ACTS. 

person  is  merely  a  fellow-servant,  the  question  should 
be  submitted  to  the  jury  for  determination.1  But  where 
all  the  evidence  in  favor  of  the  plaintiff  fails  to  show 
that  such  person  is  a  superintendent  within  the  meaning 
of  the  statute,  the  presiding  judge  should  so  instruct 
the  jury,  and,  if  the  plaintiff's  case  is  founded  solely 
on  that  ground,  a  verdict  should  be  ordered  for  the 
defendant.2 

The  question,  whether  a  superior  servant  is  a  vice- 
principal  or  merely  a  fellow-servant,  is  a  question  of 
law  for  the  court  to  decide,  when  there  is  no  conflict  of 
evidence,  and  it  is  therefore  erroneous  for  the  judge 
to  submit  that  question  to  the  jury.3 

But  when  the  evidence  upon  this  point  is  conflicting, 
the  question  should  be  left  to  the  jury.4 

§  64.  That  Superintendent  is  a  Careful  Workman  is 

no  Defence. 

In  an  action  under  the  statute  for  the  negligence  of 
a  superintendent,  it  is  no  defence  to  show  that  he  was  a 
careful  workman,5  or  that  the  defendant  had  exercised 
due  care  in  selecting  him.  To  hold  otherwise  would  be 
a  palpable  evasion  of  the  statute,  and  would  render  this 
clause  of  the  act  nugatory. 

1  Malcolm  v.  Fuller,  152  Mass.  160. 

2  O'Neil  v.  O'Leary,  164  Mass.  387. 

8  Johnson  v.  Boston  Tow-Boat  Co.,  135  Mass.  209  ;  McGinty  v.  Athol 
Reservoir  Co.,  155  Mass.  183,  187. 

4  Patnode  v.  Warren  Cotton  Mills,  157  Mass.  283,  287. 
*  Malcolm  v.  Fuller,  152  Mass.  160. 


NEGLIGENCE  OF  SUPERINTENDENT.       93 

§  65.  Common  Employment  under  Different  Em- 
ployers. 

The  mere  fact  that  employees  are  engaged  in  labor 
upon  the  same  piece  of  work  does  not  make  them  fel- 
low-servants within  the  rule  which  exempts  the  em- 
ployer from  liability  for  negligence  of  his  servants.  To 
come  within  this  rule,  the  employees  must  have  the  same 
employer.  If  they  are  servants  of  different  masters, 
they  are  not  fellow-servants  within  this  rule,  and  the 
employee  of  one  master  can  recover  damages  of  the 
other  master  for  an  injury  caused  by  the  negligence 
of  the  latter's  servants.1 

In  such  case  the  injured  employee  cannot  be  said  to 
take  upon  himself  the  risk  of  negligence  coming  from 
the  servant  of  another  master.  Nor  has  he  any  ade- 
quate means  of  guarding  against  such  negligence.  In 
the  case  of  a  common  employer,  on  the  other  hand, 
"  each  [employee]  is  an  observer  of  the  conduct  of  the 
others  ;  can  give  notice  of  any  misconduct,  incapacity, 
or  neglect  of  duty,  and  leave  the  service  if  the  common 
employer  will  not  take  such  precautions,  and  employ 
such  agents,  as  the  safety  of  the  whole  party  may 
require."  2 

§  66.  General  and  Special  Servants. 
The  general  servant  of  one  master  may  become  the 
special  servant  of  another  master  for  the  time  being. 

1  Morgan  v.  Smith,  159  Mass.  570  ;  Bun-ill  v.  Eddy,  160  Mass.  198  ; 
Johnson  v.  Lindsay,  [1891]  A.  C.  371,  reversing  Johnson  v.  Lindsay,  23 
Q.  B.  D.  508. 

2  Per  Shaw,  C.  J.,  in  Farwell  v.  Boston  &  Worcester  Ry.,  4  Met.  49. 59. 


94  EMPLOYERS'  LIABILITY  ACTS. 

In  such  case  the  special  servant  becomes  a  fellow- 
servant  with  the  general  servants  of  the  latter  master, 
so  as  to  exempt  him  from  liability  to  his  special  servant 
for  the  negligence  of  his  general  servants.  Thus,  if  A 
lends  his  servant  to  B  for  a  particular  piece  of  work, 
and  the  servant  is  injured  by  the  negligence  of  B's  gen- 
eral servants,  he  cannot  recover  of  B  because  they  are 
considered  fellow-servants.1 

But  in  order  to  relieve  the  new  master  in  such  case, 
it  must  appear  that  the  servant  knew  that  he  had  ceased 
to  be  under  the  control  of  the  master  employing  him, 
and  had  passed  under  the  control  of  the  new  master. 
In  Morgan  v.  Smith,  159  Mass.  570,  571,  the  following 
extract  from  the  opinion  of  Lord  Watson  in  Johnson  v. 
Lindsay,  [1891]  A.  C.  371,  is  quoted  with  approval  as 
correctly  stating  the  rule  and  its  limitations  :  — 

"  I  can  well  conceive  that  the  general  servant  of  A 
might,  by  working  towards  a  common  end  along  with 
the  servants  of  B,  and  submitting  himself  to  the  control 
and  orders  of  B,  become  pro  hac  vice  B's  servant,  in 
such  sense  as  not  only  to  disable  him  from  recovering 
from  B  for  injuries  sustained  through  the  fault  of  B's 
proper  servants,  but  to  exclude  the  liability  of  A  for 
injury  occasioned,  by  his  fault,  to  B's  own  workmen. 
In  order  to  produce  that  result,  the  circumstances  must, 
in  my  opinion,  be  such  as  to  show  conclusively  that 
the  servant  submitted  himself  to  the  control  of  another 
person  than  his  proper  master,  and  either  expressly  or 
impliedly  consented  to  accept  that  other  person  as  his 
master  for  the  purposes  of  the  common  employment.' 


"  2 


1  Hasty  v.  Sears,  157  Mass.  123. 

2  See,  also,  Philadelphia  &c.  Ry.  v.  Bitzer,  58  Md.  372 ;  Svenson  v . 


NEGLIGENCE  OF  SUPERINTENDENT.       95 

It  follows  from  these  views  that,  if  the  general  em- 
ployee of  one  person  is  injured  through  the  negligence 
of  the  defendant's  superintendent,  or  of  a  person  in  his 
employ  to  whose  orders  the  plaintiff  was  bound  to  con- 
form, and  did  conform,  while  in  the  temporary  employ 
of  the  defendant,  he  may  recover  under  the  Employers' 
Liability  Act  in  an  action  against  his  temporary  em- 
ployer.1 

§  67.  Injury  to  Superior  Officer  or  other  Employee 
not  under  the  Superintendence  of  the  Negligent  Su- 
perintendent. 

The  fact  that  the  injured  employee  is  not  subject  to 
the  orders  or  under  the  superintendence  of  the  super- 
intendent whose  negligence  causes  the  injury  does  not 
prevent  a  recovery  under  the  Employers'  Liability  Act 
against  the  common  employer. 

In  Kansas  City  &c.  Ry.  v.  Burton,  97  Ala.  240,  a 
brakeman  was  injured  through  the  negligence  of  a  yard- 
master  in  placing  a  car  too  near  a  track,  by  which  the 
plaintiff,  who  was  passing  on  a  car  upon  another  track, 
was  knocked  off.  The  defendant  contended  that,  as  the 
plaintiff  was  not  under  the  superintendence  of  the  yard- 
master,  the  statute  imposed  no  liability.  But  the  court 
held  the  contrary,  saying  through  Mr.  Justice  McClellan 
on  page  246  :  "  Under  sub-section  2,  it  is  manifest,  we 
think,  the  liability  of  the  defendant  is  in  no  sense 
dependent  upon  the  relations  existing  in  the  service 
between  the  negligent  and  the  injured  person.  If  the 

Atlantic  Mail  Co.,  57  N.  Y.  108  ;  Phillips  v.  Chicago  &c.  Ry.,  64  Wis. 
475 ;  Sawyer  v.  Rutland  &c.  Ry.,  27  Vt.  370  ;  Cameron  v.   Nystrom, 
[1893]  A.  C.  308. 
1  Wild  v.  Waygood,  [1892]  1  Q.  B.  783. 


96  EMPLOYEES'  LIABILITY  ACTS. 

former  has  superintendence  intrusted  to  him,  and  is  neg- 
ligent in  the  exercise  of  it  to  the  injury  of  any  '  servant 
or  employee  in  the  service  or  business  of  the  master/ 
whatever  be  the  relation  inter  se  of  the  servants,  the 
master  is  made  liable  therefor  by  the  very  terms  of  the 
statute.  If.  a  yard-master,  charged  with  the  duty  of 
keeping  the  tracks  clear,  should  negligently  obstruct  a 
track,  and  in  consequence  the  president  of  the  com- 
pany should  be  injured  in  the  service  of  the  employer, 
the  corporation,  it  cannot  be  doubted  that  the  latter 
would  have  to  respond  in  damages." 

§  68.  Employee  liable  to  Co-employee  for  Negligence. 

The  rule,  that  an  employee  cannot  recover  of  the 
common  employer  for  the  negligence  of  a  co-employee, 
does  not  bar  the  injured  person  of  all  remedy.  He  has 
the  right  at  common  law  to  sue  his  co-employee,  and 
may  recover  a  judgment  for  damages  to  the  full  extent 
of  his  injury.1  The  difficulty  occurs  in  obtaining  satis- 
faction of  the  judgment,  as  most  employees  are  unable 
to  pay  large  sums. 

The  Colorado  Employers'  Liability  Act  expressly 
declares  upon  this  point  that  — 

"  If  the  injury  sustained  by  the  employee  is  clearly 
the  result  of  the  negligence,  carelessness,  or  misconduct 
of  a  co-employee,  the  co-employee  shall  be  equally  liable 
under  the  provisions  of  this  act  with  the  employer,  and 
may  be  made  a  party  defendant  in  all  actions  brought 
to  recover  damages  for  such  injury,"  etc.2 

1  Osborne  v.  Morgan,  130  Mass.  102  (overruling  Albro  v.  Jacquith,  4 
Gray,  99)  ;  Hinds  v.  Overacker,  66  Ind.  547  ;  Griffiths  ».  Wolfram,  22 
Minn.  185  ;  Swainson  v.  Northeastern  Ry.,3  Ex.  Div.  341  ;  Winterbottom 
v.  Wright,  10  M.  &  W-  109  ;  Milligan  v.  Wedge,  12  Ad.  &  El.  737. 

2  St.  1893,  ch.  77,  §  5. 


CHAPTER  V. 


LIABILITY    PECULIAR    TO    RAILROAD    EMPLOYERS. 


Section 

69.  Scope  of  chapter,  and  statutory 

provisions. 

70.  "Train "defined. 

71.  "  Locomotive  engine.' 

72.  "Car." 

73.  "  Upon  a  railroad." 

74.  Statutory  defects  in  freight-cars, 

grab  -  irons  and  draw  -  bars. 
Blocking  of  frogs,  switches, 
and  guard-rails. 

75.  "  Charge  or  control "  for  tempo- 

rary purpose. 

76.  "  Charge  or  control"  of  train. 

77.  Brakeman   or    other    employee 

may  have  charge  or  control  of 
train.  • 


Section 

78.  Different  views  at  common  law 

concerning  person  in  charge  or 
control  of  train. 

79.  Who  may  have  the  charge  or 

control  of  locomotive  engine. 

80.  Who  may  have  the  charge   or 

control  of  a  car. 

81.  Negligence  of  person  in  charge 

or   control   of   signal,  switch, 
engine,  car,  etc. 

82.  Railroads  operated  by  receivers. 

83.  Same.     Prior  leave  of  appoint- 

ing court  to  sue. 

84.  Constitutionality.       Discrimina- 

tion against  railroads. 

85.  Same. 


§  69.  Scope,  of  Chapter,  and  Statutory  Provisions. 

THIS  chapter  does  not  include  all  cases  of  liability 
of  railroad  companies  under  the  acts,  but  merely  those 
cases  which  are  exceptional  and  peculiar  to  railroads. 
Other  cases  are  discussed  under  then-  appropriate  titles 
in  other  parts  of  the  book.1 

As  applied  to  railroad  companies,  the  defence  of  fel- 
low-service has  been  much  further  restricted  by  the 
Employers'  Liability  Acts  than  as  applied  to  other 
employers.  As  we  have  seen,  other  employers  are 

1  See,  particularly,  §§  168,  169. 


98  EMPLOYERS'  LIABILITY  ACTS. 

made  liable  for  the  negligence  of  their  superintendents.1 
Railroad  companies  are  not  only  made  liable  by  the 
Massachusetts  act  for  a  superintendent's  negligence,2 
but  also  for  "  the  negligence  of  any  person  in  the  ser- 
vice of  the  employer  who  has  the  charge  or  control  of 
any  signal,  switch,  locomotive  engine,  or  train  upon  a 
railroad." 3 

The  English  and  Colorado  statutes  are  to  the  same 
effect,  though  the  English  act  uses  the  word  "  points  " 
instead  of  "  switch."  4 

The  Alabama  act  goes  still  further  in  this  direction, 
and  makes  a  railroad  company  liable  for  "  the  negli- 
gence of  any  person  in  the  service  or  employment  of 
the  master  or  employer  who  has  the  charge  or  control 
of  any  signal,  points,  locomotive  engine,  switch,  car,  or 
train  upon  a  railway,  or  of  any  part  of  the  track  of  a 
railway." 5 

§  70.  "  Train  "  defined. 

The  Massachusetts  act  gives  a  right  of  action  to  an 
employee  of  a  railroad  company  who  is  injured  "  by 
reason  of  the  negligence  of  any  person  in  the  service 
of  the  employer  who  has  charge  or  control  of  any  .  .  . 
train  upon  a  railroad." 

To  constitute  a  "  train  "  within  the  meaning  of  the 
statute,  it  is  not  necessary  that  the  cars  should  be 
attached  to  a  locomotive  at  the  moment  of  the  injury, 

1  Ante,  §§  48,  49. 

2  Davis  v.  New  York  &c.  Ry.,  159  Mass.  532. 

8  St.  1887,  eh.  270,  §  1,  cl.  3  ;  Perry  v.  Old  Colony  Ry.,  164  Mass.  296. 

4  43  &  44  Viet.  cap.  42,  s.  1,  sub-s.  5  ;  Colo.  Sess.  Laws,  1893,  ch.  77, 
§  1,  cl.  3. 

5  Alabama  Code,  §  2590,  cl.  5. 


LIABILITY   PECULIAR   TO   RAILROAD   EMPLOYERS.      99 

or  that  two  or  more  cars  should  be  coupled  together  at 
that  time.  Thus,  in  Devine  v.  Boston  &  Albany  Ry., 
159  Mass.  348,  a  car-cleaner  was  injured  by  the  car  in 
which  she  was  working  striking  a  bunting-post  with 
unusual  force.  It  appeared  that  the  cars  from  a  train 
which  had  recently  arrived  at  their  destination  were 
being  distributed  over  the  proper  tracks  under  the 
charge  or  control  of  the  conductor.  Two  cars,  in  one 
of  which  was  the  plaintiff,  were  kicked  off  with  such 
force  by  the  locomotive,  owing  to  the  failure  of  the 
conductor  to  give  the  stop-signal  in  time,  that  they 
bumped  with  great  force  against  the  bunting-post. 
It  was  held  that  the  jury  was  justified  in  finding  that 
the  injury  was  due  to  the  negligence  of  a  person  in 
charge  of  a  train,  although  the  cars  were  separated 
from  the  locomotive  at  the  moment  when  they  struck 
the  post,  and  that  the  railroad  company  was  liable  in 
damages. 

To  the  same  effect  is  Caron  v.  Boston  &  Albany  Ry., 
164  Mass.  523. 

In  Dacey  v.  Old  Colony  Ry.,  153  Mass.  112,  115, 
the  court  by  Knowlton,  J.,  denned  a  "  train,"  within 
the  meaning  of  the  Massachusetts  statute,  as  "a  loco- 
motive and  one  or  more  cars  connected  together  and 
run  upon  a  railroad."* 

Under  the  English  act  of  1880  it  has  been  held  that 
it  is  not  necessary  that  a  locomotive  engine  should  be 
attached  in  order  to  constitute  several  cars  a  "  train  " 
within  the  meaning  of  the  act ;  and  that  a  number  of 
trucks  propelled  along  a  line  of  rails  in  a  goods  station, 
by  means  of  a  stationary  engine  at  a  distance,  consti- 
tutes a  "  train  upon  a  railway  "  under  section  1,  sub-s. 


100  EMPLOYERS'  LIABILITY  ACTS. 

5,  of  the  statute.1  In  this  case  Mr.  Justice  Mathew 
says,  on  page  109 :  "  Did  the  twelve  trucks  constitute 
a  train  ?  It  seems  to  me  that  they  did.  A  train  is  a 
train,  whether  consisting  of  trucks  laden  with  goods,  or 
of  carriages  filled  with  passengers.  The  character  of 
the  load  makes  no  difference.  Nor  do  I  think  that  a 
locomotive  engine  is  essential  to  the  making  of  a  train. 
The  place  where  the  accident  occurred  was  clearly  a 
part  of  the  line  of  railway."  The  opinion  of  Mr.  Jus- 
tice Cave  is  to  the  same  effect. 

§  71.  " Locomotive  Engine" 

Under  the  English  act  it  has  been  decided  that  a 
steam  crane  fixed  on  a  trolley,  and  propelled  by  steam 
along  a  set  of  rails  when  necessary  to  move  it,  and 
used  for  lifting  heavy  weights  in  constructing  a  railway, 
is  not  a  "  locomotive  engine "  within  the  meaning  of 
the  statute,  and  that  therefore  no  action  could  be  main- 
tained for  an  injury  caused  by  the  negligence  of  the 
person  in  charge  or  control  of  the  crane.2  Pollock,  B., 
says  on  page  525  of  the  case  cited  below :  "  The  words 
used  in  the  sub-section,  in  connection  with  the  term 
•*  locomotive  engine,'  refer  exclusively  to  well-known 
things  connected  with  the  ordinary  working  of  a  rail- 
way. The  machine  in  this  case  is  intended  to  lift  heavy 
weights  of  stone,  and  other  materials  used  in  construct- 
ing a  railway,  having  besides  an  accidental  power  of 
applying  its  steam  force  to  the  trolley.  If  the  legisla- 
ture had  intended  to  include  any  such  machine,  they 
would  have  used  proper  terms." 

1  Cox  v.  Great  Western  Ry.,  9  Q.  B.  D.  106. 

2  Murphy  v.  Wilson,  52  L.  J.  (Q.  B.)  524. 


LIABILITY    PECULIAR   TO   RAILROAD    EMPLOYERS.       101 

§  72.  «  Car." 

The  Alabama  act,  making  a  railroad  liable  for  the 
negligence  of  any  person  having  charge  or  control  of  a 
"  car,"  applies  to  a  hand-car  as  well  as  to  an  ordinary 
car.1 

§  73.  "Upon  a  fiailroad" 

A  locomotive  engine  at  rest  upon  the  rails  of  a  rail- 
road round-house,  where  it  had  been  left  for  temporary 
repairs,  is  not  "  upon  a  railroad  "  within  the  meaning 
of  the  Massachusetts  Employers'  Liability  Act;  and 
therefore  one  sent  to  repair  it  cannot  recover  for  in- 
juries received  through  the  negligence  of  the  defend- 
ant's employee  in  charge  or  control  of  the  engine.2 

§  74.  Statutory  Defects  in  Freight- Cars,  Grab-irons 
and  Draw-bars.  Slocking  of  Frogs,  Switches,  and 
Guard-rails. 

The  Massachusetts  statute  of  1895,  ch.  362,  requires 
locomotives  and  cars  used  in  traffic  within  the  State  to 
be  equipped  with  certain  safety  appliances.  A  failure 
on  the  part  of  a  railroad  corporation  doing  business 
within  the  State  to  comply  with  the  requirements  of 
this  statute  would  probably  render  it  liable  for  injuries 
caused  thereby  to  its  employees,  under  the  Employers' 
Liability  Act.  The  Act  of  Congress  of  March  2, 1893, 
ch.  196,  27  Stat.  531,  relating  to  common  carriers  en- 
gaged in  interstate  commerce,  contains  like  provisions 
respecting  such  common  carriers  and  their  employees. 

1  Richmond  &c.  Ry.  v.  Hammond,  93  Ala.  181  ;  Kansas  City  &c.  Ry. 
v.  Crocker,  95  Ala.  412. 

2  Perry  v.  Old  Colony  Ry.,  164  Mass.  296 ;  41  N.  E.  Rep.  289. 


102  EMPLOYERS'  LIABILITY  ACTS. 

Sections  3  and  4  of  this  Massachusetts  act  declare 
that  — 

"  Section  3.  On  and  after  the  first  day  of  July  in 
the  present  year,  and  until  otherwise  ordered  by  the 
board  of  railroad  commissioners,  no  railroad  corpora- 
tion shall  use,  in  moving  traffic  between  points  in  this 
Commonwealth,  any  car  which  is  not  provided  with 
secure  grab-irons  or  hand-holds  in  the  ends  and  sides  of 
each  car  for  greater  security  to  men  in  coupling  and 
uncoupling  cars  :  provided,  that  this  section  shall  not 
apply  to  flat  cars  which  are  equipped  with  automatic 
couplers  such  as  are  described  in  section  2. 

"  Section  4.  The  standard  height  of  draw-bars  for 
freight-cars,  measured  perpendicularly  from  the  level  of 
the  top  of  the  rails  to  the  centres  of  the  draw-bars,  shall 
be  thirty-four  and  one  half  inches  for  standard  gauge 
railroads,  and  twenty-six  inches  for  narrow  gauge  rail- 
roads, with  a  maximum  variation  from  such  standard 
height,  in  either  case,  of  three  inches  between  the  draw- 
bars of  empty  and  loaded  cars ;  and,  on  and  after  the 
date  last  above  named,  no  freight-car,  either  loaded  or 
unloaded,  shall  be  used  in  moving  traffic  between  points 
in  this  Commonwealth  with  draw-bars  which  do  not 
comply  with  the  above  standard." 

Both  the  Massachusetts  statute  and  the  Act  of  Con- 
gress above  mentioned  expressly  declare  that  an  em- 
ployee's continuance  in  the  service  with  knowledge  of 
the  defect  shall  not  be  deemed  an  assumption  of  the 
risk  of  injury.1  Even  if  these  statutes  had  not  con- 
tained this  provision,  the  employee  injured  thereby 
would  not  have  been  precluded  from  recovering  by 

1  Mass.  St.  1895,  ch.  362,  §  7  ;  27  U.  S.  Statutes,  531,  ch.  196,  §  8. 


LIABILITY   PECULIAR   TO   RAILROAD   EMPLOYERS.     103 

such  conduct  and  knowledge,  because  the  defence  based 
upon  the  maxim,  Volenti  nonfit  injuria,  does  not  apply 
when  the  injury  is  caused  by  the  employer's  breach  of 
a  specific  statutory  duty  imposed  upon  him  for  the  pro- 
tection of  his  employees.  In  Baddeley  v.  Granville, 
19  Q.  B.  D.  423,  this  point  was  expressly  decided  with 
respect  to  the  Coal  Mines  Regulation  Act,  1872,  which 
required  a  banksman  to  be  kept  at  the  mouth  of  a  coal- 
pit while  the  miners  were  going  up  or  down  the  shaft. 

The  Massachusetts  statute  of  1894,  ch.  41,  entitled 
"  An  act  to  provide  for  the  blocking  of  railroad  frogs, 
switches,  and  guard-rails,"  does  not  contain  any  pro- 
vision which  prevents  such  conduct  on  the  part  of  the 
employee  from  amounting  to  an  assumption  of  the  risk 
of  injury  caused  by  a  failure  of  the  railroad  to  comply 
with  the  terms  of  the  statute.  Section  1  of  this  act 
reads  as  follows :  — 

"  Section  1.  Every  railroad  corporation  shall,  before 
the  first  day  of  October  in  the  present  year,  block,  or 
cause  to  be  blocked,  the  frogs,  switches,  and  guard-rails, 
excepting  guard-rails  on  bridges,  in  or  connected  with 
any  and  all  railroad  tracks  operated  or  used  by  it  in 
this  Commonwealth,  and  shall  thereafter  keep  the  same 
so  blocked  by  some  method  or  methods  approved  by 
the  board  of  railroad  commissioners,  so  as  to  prevent 
employees  from  being  caught  therein." 

§  75.  "  Charge  or  Control "  for  Temporary  Purpose. 

Under  the  Massachusetts  and  Alabama  acts  it  has 
been  held  that,  to  constitute  a  person  one  in  "  charge 
or  control  "of  a  train,  etc.,  it  is  not  necessary  that  he 
should  have  the  general  or  usual  charge  or  control  of 


104  EMPLOYERS'  LIABILITY  ACTS. 

it,  but  it  is  sufficient  if  he  has  the  charge  or  control  for 
a  temporary  purpose,  or  for  the  time  being.1  In  Steffe 
v.  Old  Colony  Ry.,  156  Mass.  262,  264,  265,  Mr.  Jus- 
tice Allen,  in  delivering  the  court's  opinion,  says  :  — 

"  The  question  is,  was  there  evidence  warranting  the 
jury  in  finding  that  Thompson,  the  brakeman,  was  in 
charge  or  control  of  the  train?  In  the  opinion  of  a 
majority  of  the  court,  there  was.  The  statute  obviously 
implies  that  some  person  is  to  be  regarded  as  being  in 
charge  or  control  of  a  moving  train,  and  makes  the  de- 
fendant responsible  for  the  negligence  of  any  person  in 
its  service  who  has  such  charge  or  control.  It  is  not 
necessary  that  he  should  be  a  conductor,  or  have  any 
other  particular  office  or  position.  The  statute  includes 
every  person,  and  must  be  deemed  to  mean  any  person 
who  has  such  charge  or  control  for  the  time  being. 
Ordinarily,  one  who  is  to  determine  whether  the  train 
is  to  move  or  remain  stationary,  and  who  is  to  give 
directions  as  to  the  moving  or  stopping  of  the  train, 
may  be  said  to  be  in  the  charge  or  control  of  it.  In 
the  case  before  us,  the  only  persons  upon  the  train  were 
the  engineer  and  the  brakeman." 

In  England,  however,  it  has  been  held  by  the  Court 
of  Appeal  in  Gibbs  v.  Great  Western  Ry.,  12  Q.  B.  D. 
208,  that  to  fall  within  the  meaning  of  the  English  act 
of  1880  the  person  must  have  the  general  charge  or 
control,  and  that  a  charge  or  control  at  a  particular 
time  when  the  negligence  was  committed  is  not  suf- 
ficient to  render  the  common  employer  liable.  In  this 
case  an  engine-driver  was  killed  through  the  negligence 

1  Steffe  v.  Old  Colony  Ry.,   156  Mass.   262;  Louisville   &c.  Ry.  v. 
Richardson,  100  Ala.  232. 


LIABILITY    PECULIAR   TO   RAILROAD    EMPLOYERS.       105 

of  one  Fisher  in  leaving  the  cover  of  a  box  containing 
machinery,  which  it  was  his  duty  to  oil,  on  the  track, 
causing  a  derailment  of  the  train.  The  testimony 
showed  that  Fisher's  duty  was  to  clean,  oil,  and  adjust 
the  wires  and  locking  apparatus  connected  with  the 
points ;  that  the  points  were  worked  from  the  signal- 
box  ;  that  Fisher  had  a  boy  to  assist  him  in  his  work ; 
and  that  one  Saunders,  an  inspector,  had  general  charge 
of  the  points.  It  was  held  that  the  evidence  would  not 
warrant  a  finding  that  Fisher  had  the  charge  or  control 
of  the  points  within  the  meaning  of  the  statute.  The 
Master  of  the  Rolls,  Brett,  says  on  page  212  :  "  I  think 
that  to  be  such  a  person  he  should  be  one  who  has  the 
general  charge  of  the  points,  and  not  one  who  merely 
has  the  charge  of  them  at  some  particular  moment." 

§  76.  "  Charge  or  Control "  of  Train. 

The  mere  fact  that  the  conductor  of  a  freight  train 
is  temporarily  absent  from  the  train  upon  a  duty  con- 
nected with  the  proper  management  of  the  train  is  not 
conclusive  proof  that  he  was  not  in  the  "  charge  or 
control "  of  the  train  at  the  time  of  the  injury,  within 
the  meaning  of  the  Massachusetts  act.  Upon  such  evi- 
dence the  jury  is  justified  in  finding  that  he  was  in  the 
charge  or  control  thereof,  and  a  verdict  for  the  plaintiff 
will  not  be  set  aside  on  that  ground,  especially  when  it 
does  not  appear  that  anything  contrary  to  his  orders  or 
expectations  was  done  during  his  absence.1 

In  Dacey  v.  Old  Colony  Ry.,  153  Mass.  112,  a  brake- 
man  was  killed  by  being  crushed  between  a  moving  car 
which  he  was  in  the  act  of  boarding  and  a  stationary 

1  Donahoe  v.  Old  Colony  Ry.,  153  Mass.  356. 


106  EMPLOYERS'  LIABILITY  ACTS. 

car  so  near  it  on  another  track  as  to  leave  a  space 
of  less  than  five  inches  between  them.  The  injury 
occurred  upon  a  dark  night  in  the  freight  yard  of  the 
defendant  in  Taunton,  which  was  an  extensive  one, 
with  thirteen  tracks.  The  plaintiff,  who  was  the  admin- 
istratrix of  the  deceased  brakeman,  contended  that  the 
injury  was  caused  by  the  negligence  of  a  person  in  the 
service  of  the  defendant,  who  had  charge  or  control  of 
a  locomotive  engine  or  train  upon  its  railroad,  in  leaving 
the  stationary  car  standing  so  near  the  other  track. 
The  only  evidence  as  to  who  left  this  car  in  its  danger- 
ous position  was  that  during  the  afternoon  the  day 
gang,  under  the  direction  of  its  conductor,  had  been 
engaged  in  placing  cars  upon  that  track.  The  court 
held  that  the  questions  of  whether  the  stationary  car 
was  left  in  that  position  through  the  negligence  of  a 
person  in  charge  of  a  train,  and  whether  the  brakeman 
was  in  the  exercise  of  due  care,  should  have  been  left 
to  the  jury. 

In  Thyng  v.  Fitchburg  Ry.,  156  Mass.  13,  a  freight 
brakeman  was  killed  by  reason  of  the  negligence  of 
some  one  in  putting  too  short  a  coupling-pin  between 
two  freight-cars,  which  caused  them  to  break  apart  and 
to  throw  the  deceased  under  the  rear  car.  The  train 
was  made  up  in  the  yard  under  the  direction  of  the  con- 
ductor of  a  switch-engine,  and  the  plaintiff  contended 
that  the  injury  was  due  to  his  negligence,  and  that  he 
was  a  person  in  "  charge  or  control "  of  a  train  within 
the  meaning  of  the  act.  But  the  court  held  that  the 
persons  who  made  up  the  train  were  fellow-servants  of 
the  deceased,  and  that  his  administratrix  could  not 
recover.  The  court,  speaking  through  Mr.  Justice 
Knowlton,  says :  — 


LIABILITY   PECULIAR   TO   EAILROAD    EMPLOYERS.      107 

"  A  conductor  of  a  switch-engine  which  is  drawing 
several  cars  under  his  direction  may  be,  for  the  time,  in 
charge  of  a  train  consisting  of  the  engine  and  cars.1 
But  there  is  nothing  to  show  that  this  conductor  of  a 
switch-engine  was  at  any  time  negligent  in  his  charge 
or  management  of  such  a  train,  or  of  the  engine 
attached  to  it,  or  that  his  conduct  in  reference  to  such 
a  train  had  any  connection  with  the  accident.  His 
only  relation  to  the  train  on  which  the  plaintiff  [de- 
ceased] worked  was  to  bring  the  cars  together  and 
make  the  train  up.  His  duties  were  ended  as  soon  as 
the  cars  were  connected  so  as  to  make  a  train.  He 
never  had  charge  or  control  of  those  cars  as  a  train, 
but  he  was  to  determine  what  cars  should  be  brought 
together  to  constitute  the  train,  and  see  that  they  were 
properly  coupled  and  ready  to  be  taken  away.  .  .  . 
The  legislature  in  this  part  of  the  statute  has  gone 
no  further  than  to  include  those  whose  duties  relate  to 
the  charge  of  a  locomotive  engine,  or  the  train 'when 
complete."  Page  18. 

In  Caron  v.  Boston  &  Albany  Ry.,  164  Mass.  523, 
528,  the  court,  through  Mr.  Justice  Morton,  says :  "  It 
is  the  charge  or  control  of  which  the  statute  speaks, 
and  not  a  charge  or  control ;  and  it  is  the  charge  or 
control  of  the  train  as  a  connected  whole  which  is 
meant,  not  of  portions  which  together  form  a  whole. 
Thyng  v.  Fitchburg  Railroad,  ubi  supra.  We  think, 
therefore,  that  by  the  words  ( any  person  .  .  .  who  has 
the  charge  or  control'  is  meant  a  person  who,  for  the 
time  being  at  least,  has  immediate  authority  to  direct 
the  movements  and  management  of  the  train  as  a 

1  Citing  Dacey  v.  Old  Colony  Ry.,  153  Mass.  112. 


108  EMPLOYERS'  LIABILITY  ACTS. 

whole,  and  of  the  men  engaged  upon  it."  It  was 
accordingly  held  that  a  brakeman  acting  under  the 
supervision  of  a  conductor  is  not  a  person  in  the  charge 
or  control  of  a  train. 

§  77.  Brakeman  or  Other  Employee  may  have  Charge 
or  Control  of  a  Train. 

By  the  Massachusetts  statute  a  railroad  company  is 
made  liable  to  its  employees  for  the  negligence  of  "  any 
person  "  in  its  service  who  has  charge  or  control  of  a 
train.  It  is  not  necessary  that  such  person  should  be 
a  conductor,  or  have  any  particular  office.  "  Ordi- 
narily, one  who  is  to  determine  whether  the  train  is 
to  move  or  remain  stationary,  and  who  is  to  give  direc- 
tions as  to  the  moving  or  stopping  of  the  train,  may  be 
said  to  be  in  the  charge  or  control  of  it."  A  brake- 
man may  be  such  a  person. 

Thus  in  Steffe  v.  Old  Colony  Ry.,  156  Mass.  262,  a 
car-inspector  was  injured  through  the  negligence  of  a 
brakeman  on  a  train  who  failed  to  give  him  warning 
of  its  approach  or  to  stop  the  train.  The  engineer 
and  the  brakeman  were  the  only  persons  upon  the 
train  ;  the  train  was  backing,  and  the  brakeman  was 
stationed  at  the  rear  end  of  the  car  to  watch  the  track, 
and  to  warn  any  person  on  the  track  of  its  approach, 
and  to  stop  the  train  either  by  the  automatic  brake 
or  by  signalling  to  the  engineer.  It  was  held  that  this 
evidence  warranted  the  jury  in  finding  that  the  brake- 
man was  in  charge  or  control  of  the  train,  and  that 
the  railroad  company  was  liable  for  his  negligence.  In 
the  language  of  the  court,  by  Allen,  J. :  "  The  statute 
includes  every  person,  and  must  be  deemed  to  mean 


LIABILITY    PECULIAR   TO   RAILROAD   EMPLOYERS.     109 

any  person,  who  has  charge  or  control  for  the  time 
being."  Page  264.  If  the  action  had  been  at  com- 
mon law,  the  plaintiff  could  not  have  recovered.1 

Under  the  English  statute,  it  has  been  held  that  a 
"  capstan-man  "  may  be  a  person  in  charge  or  control 
of  a  train.  In  Cox  v.  Great  Western  By.,  9  Q.  B.  D. 
106,  the  plaintiff  was  injured  through  the  negligence  of 
a  person  in  the  defendant's  employ  known  as  a  "  capstan- 
man,"  whose  duty  it  was  to  propel,  by  means  of  a 
stationary  engine  at  a  distance,  trucks  laden  with  goods 
along  a  line  of  rails  in  a  goods  station.  His  negligence 
consisted  in  a  failure  to  give  the  usual  warning  that 
he  had  sent  the  trucks  down  the  line  towards  the  plain- 
tiff, who  was  engaged  in  similar  work  at  the  other  end 
of  the  line,  about  one  hundred  yards  distant.  It  was 
held  that  the  evidence  would  warrant  a  finding  that  the 
capstan-man  was  a  person  in  charge  or  control  of  a 
train  upon  a  railway. 

§  78.  Different    Views  at  Common   Law  concerning 
Person  in  Charge  or  Control  of  Train. 

At  common  law,  in  most  jurisdictions,  the  conductor 
or  other  person  having  the  charge  or  control  of  a 
moving  train  is  deemed  a  fellow-servant  with  a  common 
laborer  employed  upon  the  track,  and  therefore  the 
railroad  company  is  not  liable  to  either  for  an  injury 
caused  by  the  negligence  of  the  other  employee.  The 
different  views  are  thus  summarized  by  the  Supreme 
Court  of  the  United  States,  speaking  through  Mr. 
Justice  Brown,  in  the  recent  case  of  Northern  Pacific 
By.-  v.  Hambly,  154  U.  S.,  349,  355,  356 :  — 

1  Gillshannon  v.  Stony  Brook  Ry.,  10  Cush.  228  ;  Seaver  v.  Boston  & 
Maine  Ry.,  14  Gray,  466. 


110  EMPLOYERS'.  LIABILITY  ACTS. 

"  There  is  probably  no  subject  connected  with  the 
law  of  negligence  which  has  given  rise  to  more  variety 
of  opinion  than  that  of  fellow-service.  The  authorities 
are  hopelessly  divided  upon  the  general  subject  as  well 
as  upon  the  question  here  involved.  It  is  useless  to 
attempt  an  analysis  of  the  cases  which  have  arisen  in 
the  courts  of  the  several  States,  since  they  are  wholly 
irreconcilable  in  principle,  and  too  numerous  even  to 
justify  citation.  It  may  be  said  in  general  that,  as 
between  laborers  employed  upon  a  railroad  track  and 
the  conductor  or  other  employees  of  a  moving  train, 
the  courts  of  Massachusetts,  Rhode  Island,  New  York, 
Indiana,  Iowa,  Michigan,  North  Carolina,  Minnesota, 
Maine,  Texas,  California,  Maryland,  Pennsylvania, 
Arkansas,  and  Wisconsin  hold  the  relation  of  fellow- 
servants  to  exist ;  *  while  in  Illinois,  Missouri,  Virginia, 
Ohio,  and  Kentucky  the  rule  is  apparently  the  other 
way.2  The  cases  in  Tennessee  seem  to  be  divided." 3 

1  Citing  Far-well  v.  Boston  &  Worcester  Ry.,  4  Met.  49  ;  Clifford  v. 
Old  Colony  Ry.,  141  Mass.  564  ;  Brodeur  v.  Valley  Falls  Co.,  16  R.  I. 
448  ;   Harvey  v.  New   York  Central   Ry.,  88   N.  Y.  481  ;   Gormley  v. 
Ohio   &c.  Ry.,  72  Ind.  31  ;  Collins   v.  St.   Panl  &c.  Ry.,  30  Minn.  31 ; 
Pennsylvania  Ry.  v.  Wachter,  60  Md.   395  ;  Houston  &c.  Ry.  v.  Rider, 
62  Texas,  267  ;  St.  Louis  &c.  Ry.  v.  Shackelford,  42  Ark.  417  ;  Blake  v. 
Maine  Central  Ry.,  70  Me.  60  ;  Ryan  v.  Cumberland  Valley  Ry.,  23  Pa. 
St.  384  ;  Sullivan  v.  Mississippi  &c.  Ry.,  11  Iowa,  421  ;  Fowler  v.  Chicago 
&c.  Ry.,  61  Wis.  159 ;  Kirk  v.  Atlantic  &c.  Ry.,  94  N.  C.  625  ;  Quincy 
Mining  Co.  v.  Kitts,  42  Mich.  34  ;  Keystone  Bridge  Co.  v.  Newberry,  96 
Pa.  St.  246. 

2  Citing  Chicago  &c.  Ry.  v.  Moranda,  93  111.  302  ;  Sullivan  v.  Missouri 
Pacific  Ry.,  97  Mo.  113  ;  Richmond  &c.  Ry.  v.  Normont,  4  S.  E.  Rep. 
211  ;  Dick  v.  Railroad  Co.,  38  Ohio  St.  389  ;  Louisville  &c.  Ry.  v.  Caven, 
9  Bush  (Ky.),  559  ;  Madden  v.  Chesapeake  &c.  Ry.,  28  W.  Va.  610. 

8  Citing  East  Tennessee  &c.  Ry.  v.  Rush,  15  Lea,  145  ;  Louisville  &c. 
Ry.  v.  Robertson,  9  Heisk.  276  ;  Haley  v.  Mobile  &c.  Ry.,  7  Baxter,  239  ; 
Nashville  &c.  Ry.  v.  Jones,  9  Heisk.  27 ;  East  Tennessee  &c.  Ry.  v.  Gurley, 
12  Lea,  46. 


LIABILITY   PECULIAR   TO   RAILROAD   EMPLOYERS.     Ill 

The  point  decided  in  Northern  Pacific  Ry.  v. 
Hambly,  154  U.  S.  349,  was  that  the  conductor  and 
engineer  of  a  railroad  train  are  fellow-servants  with  a 
common  day-laborer,  who,  while  working  for  the  com- 
pany under  a  section  boss  on  a  culvert,  receives  an 
injury  through  their  negligence  in  moving  and  oper- 
ating a  passenger  train,  and  he  therefore  cannot  recover 
of  the  common  employer,  the  railroad  company.1 

A  conductor  is  not  a  fellow-servant  with  the  engi- 
neer of  the  same  train,  because  the  conductor  has  the 
general  management  and  control  of  the  train  and  rep- 
resents the  common  employer,  the  railroad  company. 
Hence  the  railroad  company  is  liable  to  the  engineer 
for  an  injury  caused  by  the  negligence  of  the  con- 
ductor.2 

A  conductor  is  a  vice-principal  towards  a  brakeman 
on  the  same  train,  and  the  railroad  company  is  liable 
to  the  brakeman  for  an  injury  caused  through  the 
conductor's  negligence.3 

§  79.    Who  may  have  the  Charge  or  Control  of  Loco- 
motive Engine. 

In  Louisville  &c.  Ry.  v.  Richardson,  100  Ala.  232, 
the  plaintiff,  while  engaged  in  wiping  grease  off  of  a 
switch-engine,  was  scalded  through  the  negligence  of 
a  hostler  in  opening  the  throttle  and  permitting  the 
steam  to  blow  out  into  his  face.  The  engineer  was 

1  Following  Randall  v.  Baltimore  &  Ohio  Ry.,  109  U.  S.  478  ;  Quebec 
Steamship  Co.  v.  Merchant,  133  U.  S.  375  ;  Baltimore  &  Ohio  Ry.  v. 
Baugh,  149  U.  S.  368  :  distinguishing  Chicago  &c.  Ry.  v.  Ross,  112  U.  S. 
377. 

2  Chicago  &c.  Ry.  v.  Ross,  112  U.  S.  377,  394. 

8  Canadian  Pacific  Ry.  v.  Johnston,  61  Fed.  Rep.  738. 


112  EMPLOYERS'  LIABILITY  ACTS. 

standing  on  the  ground,  packing  a  gland-valve.  There 
was  evidence  that  the  hostler,  whose  regular  duty  it 
was  to  move  road-engines  about  the  yard,  had  been 
ordered  not  to  move  switch-engines,  but  that  he  fre- 
quently did  move  them,  and  that  he  got  on  the  engine 
at  the  time  in  question  for  the  purpose  of  moving  it. 
There  was  no  evidence  that  the  engineer  and  hostler 
had  any  joint  control  over  the  engine.  The  presiding 
justice  refused  to  rule  that,  if  the  engineer  was  in 
charge  or  control  of  the  engine  at  the  time  of  the  acci- 
dent, the  plaintiff  could  not  recover.  On  appeal,  how- 
ever, it  was  held  that  the  refusal  to  give  the  instruction 
requested  was  reversible  error.  In  the  court's  opinion, 
delivered  by  Mr.  Justice  Haralson,  it  is  said  on  page 
236:  — 

"  The  question  as  to  what  person,  on  the  occasion 
of  the  injury  to  the  plaintiff,  had  charge  or  control 
of  the  engine,  is  one  of  fact,  properly  left  to  the 
jury,  with  instructions  under  the  evidence  in  the  cause. 
Generally,  we  would  say,  especially  when  he  is  on  and 
running  the  engine,  or  has  the  actual  custody,  that  the 
engineer  has  control  of  it.  It  may  be,  however,  when 
he  is  not  in  the  active  manipulation  of  it,  that  other 
persons  control  it.  It  will  not  do  to  say,  therefore,  as 
a  matter  of  law,  who  has  the  control  or  charge  of  an 

'  o 

engine,  at  any  particular  time,  when  it  is  fairly  infer- 
able from  the  evidence  that  cither  one  or  the  other 
of  two  persons  may  have  such  control.  In  each  par- 
ticular case  time,  place,  and  circumstances  must  deter- 
mine the  question  of  immediate  control." 

In  Louisville  &c.  Ry.  v.  Mothershed,  97  Ala.  261, 
267,  Mr.  Justice  Coleman,  in  delivering  the  court's 


• 
LIABILITY   PECULIAR   TO   RAILROAD   EMPLOYERS.     113 

opinion,  says  :  "  If  McNutt,  the  yard-master  and  the 
superior  of  all  the  other  employees  present,  personally 
took  the  place  of  the  engineer  and  was  running  the 
engine  at  the  time  of  the  accident,  the  defendant  rail- 
road company  would  be  liable  for  his  negligence,  the 
same  as  if  the  engineer  himself  had  been  in  charge  and 
had  been  guilty  of  the  same  act  of  negligence." 

At  common  law,  the  engineer  and  fireman  of  a  loco- 
motive engine  are  fellow-servants,  and  their  common 

O  ' 

employer,  the  railroad  company,  is  not  liable  to  either 
for  the  negligence  of  the  other.  Even  when  the  engine 
is  run  alone  without  a  train  attached,  and  a  rule  of  the 
company  provides  that  in  such  case  the  engineer  shall 
be  "  regarded  as  conductor,  and  will  act  accordingly," 
the  company  is  not  liable  to  the  fireman  for  the  negli- 
gence of  the  engineer.1 

§  80.  Who  may  have  the  Charge  or  Control  of  a  Car. 

The  foreman  of  a  gang  of  men  using  a  hand-car 
may  be  a  person  in  charge  or  control  of  a  car,  within 
the  meaning  of  the  Alabama  statute.2 

At  common  law,  a  car-inspector  is  a  fellow-servant 
with  a  freight  brakeman,  and  therefore  the  common 
employer  is  not  liable  to  the  brakeman  for  the  negli- 
gent act  of  the  inspector.3 

1  Baltimore  &  Ohio  Ry.  v.  Baugh,  149  U.  S.  368.     (Contra  in  Ohio,  it 
seems,  where  the  doctrine  of  "  superior  servant "  prevails.     Little  Miami 
Ry.  v.  Stevens,  20  Ohio,  415  ;  Cleveland  &c.  Ry.  v.  Keary,  3  Ohio  St. 
201  ;  Berea  Stone  Co.  v.  Kraft,  31  Ohio  St.  287,  291,  292.) 

2  Kansas  City  &c.  Ry.  v.  Crocker,  95  Ala.  412. 

8  Smoot  v.  Mobile  &c.  Ry.,  67  Ala.  13  ;  Dewey  v.  Detroit  &c.  Ry.,  97 
Mich.  329.  Contra,  Cooper  v.  Pittsburgh  &c.  Ry.,  24  W.  Va.  37 ;  Mis- 
souri Pacific  Ry.  v.  Condon,  17  Am.  &  Eng.  R.  R.  Cases,  589 ;  8.  C.,  78 
Mo.  567. 


114  EMPLOYERS'  LIABILITY  ACTS. 

§  81.  Negligence  of  Person  in  Charge  or  Control  of 
Signal,  Switch,  Engine,  Car,  etc. 

In  Richmond  &c.  Ry.  v.  Jones,  92  Ala.  218,  a  switch- 
man while  uncoupling  cars  was  injured  by  the  backing 
of  the  locomotive  and  its  collision  with  the  car.  The 
plaintiff  was  standing  on  the  foot-board  of  the  engine- 
tender,  and  gave  the  signal  by  his  lantern  to  go  ahead. 
The  fireman  gave  the  signal  to  the  engineer  to  back. 
The  presiding  judge  charged  the  jury  that,  if  the 
fireman  was  placed  there  to  receive  signals  from  the 
switchman,  and  to  communicate  them  to  the  engineer, 
and  that  instead  of  giving  the  go-ahead  signal  he  gave 
the  back-up  signal,  and  thereby  caused  the  plaintiff's 
injury,  the  plaintiff  could  recover  against  the  railroad 
company  under  the  Employers'  Liability  Act.  The 
Supreme  Court,  in  affirming  this  ruling,  says  on  page 
227,  by  Mr.  Justice  Colemari :  — 

"  The  evidence  tended  to  show  that  it  was  the  duty 
of  firemen  to  receive  signals  from  switchmen,  and  trans- 
mit them  to  the  engineer.  If  the  injury  to  plaintiff 
was  caused  by  negligence  of  the  fireman  in  transmit- 
ting the  signals  to  the  engineer,  given  to  him  for  that 
purpose  by  the  plaintiff  in  the  discharge  of  his  duty  as 
a  switchman,  such  injury  is  clearly  within  the  provision 
of  the  Employers'  Liability  Act." 

The  court  does  not  specify  the  precise  clause  under 
which  the  defendant  was  liable,  but  it  seems  to  fall 
under  the  clause  making  a  railroad  company  liable  to 
its  employees  for  the  negligence  of  any  person  in  its 
service  having  the  charge  or  control  of  any  signal, 
engine,  or  train  upon  a  railway. 


LIABILITY    PECULIAR   TO   RAILROAD   EMPLOYERS.      115 

A  person  having  the  charge  or  control  of  railroad 
cars  who  places  one  of  them  in  such  close  proximity 
to  another  track  as  to  knock  off  a  brakeman  upon  a 
passing  freight-car  upon  the  latter  track,  while  in  the 
proper  and  careful  discharge  of  his  duty,  is  guilty  of 
negligence,  for  which  the  common  employer  is  liable 
under  the  Alabama  statute.1 

The  failure  of  one  in  charge  of  a  locomotive  engine 
to  stop  or  slow  up  in  approaching  a  switch,  as  required 
by  the  rules  of  the  railroad  company,  is  actionable 
negligence,  for  which  the  railroad  is  liable  to  another 
employee  for  an  injury  caused  thereby.2 

The  foreman  of  a  gang  of,  men  on  a  hand-car  who, 
while  the  car  is  in  rapid  motion  on  a  down  grade,  sud- 
denly applies  the  brake  and  checks  its  speed  without 
warning  to  the  men,  whereby  the  plaintiff  is  thrown  off 
the  car  and  run  over,  is  guilty  of  negligence ;  and  if 
such  foreman  had  the  charge  or  control  of  the  car  at 
the  time,  an  action  may  be  maintained  against  the  com- 
mon employer,  a  railroad  company,  under  the  Alabama 
Employers'  Liability  Act.3 

§  82.  Railroads  operated  by  Receivers. 
The  fact  that  a  railroad  is  in  the  hands  of  a  receiver 
does  not  prevent  an  employee  from  recovering  damages 
for  personal  injuries  received  through  the  negligence 
of  a  fellow-servant  under  the  statute  of  the  State  of 
injury.  Such  a  state  statute  changing  the  rule  of  the 
common  law  applies  to  receivers  operating  railroads 

1  Kansas  City  &c.  Ry.  v.  Burton,  97  Ala.  240. 

2  Louisville  &c.  Ry.  v.  Mothershed,  97  Ala.  261. 
8  Kansas  City  &c.  Ry.  v.  Crocker,  95  Ala.  412. 

If 


116  EMPLOYERS'  LIABILITY  ACTS. 

under  appointment  from  federal  courts,  as  well  as  to 
the  railroads  themselves.1 

§  83.    Same.     Prior  Leave  of  Appointing  Court  to 

sue. 

Irrespective  of  statute,  it  is  held  in  most  jurisdic- 
tions that  a  railroad  receiver  cannot  be  sued  without 
prior  leave  of  the  appointing  court.  Without  such 
leave  the  court  has  no  jurisdiction,  and  must  dismiss 
the  suit.2  Congress  has,  however,  changed  this  rule  in 
regard  to  federal  receivers,3  and  this  statute  authorizes 
suits  against  such  receivers  both  in  the  state  courts4 
and  in  the  federal  courts5  without  prior  leave  of  the 
appointing  court. 

§  84.  Constitutionality.     Discrimination  against 
Railroads. 

The  fact  that  the  Employers'  Liability  Acts  discrimi- 
nate against  railroads  by  imposing  greater  liabilities 
upon  them  for  personal  injuries  received  by  their 
employees  than  upon  other  classes  of  employers  does 
not  render  the  statutes  unconstitutional. 

With  respect  to  the  so-called  "railroad  acts,"  which 
make  railroad  companies  liable  for  injuries  to  employees 

1  Hornsby  v.  Eddy,  56  Fed.  Rep.  461  ;  8.  c.,  5  C.  C.  A.  560  ;  Eonse  v. 
Hornsby,67  Fed.  Rep.  219  ;  Murphy  v.  Holbrook,  20  Obio  St.  137  ;  Paige 
v.  Smith,  99  Mass.  395  ;  Little  v.  Duseuberry,  46  N.  J.  Law,  614.    Contra, 
Turner  v.  Cross,  83  Tex.  218. 

2  Barton  v.  Barbour,  104  U.  S.  126 ;  Robinson  v.  Atlantic  &c.  Ry.,  66 
Pa.  St.  160;  Palys  v.  Jewett,  32  N.  J.  Eq.  302  ;  Noe  v.  Gibson,  7  Paige 
(N.  Y.),  513. 

3  24  Stat.  554,  March  3,  1887,  ch.  373,  §  3. 
*  McNulta  v.  Lochridge,  141  U.  S.  327. 

6  Texas  &c.  Ry.  v.  Cox,  145  U.  S.  593. 


LIABILITY    PECULIAR   TO   RAILROAD    EMPLOYERS.      117 

caused  by  the  negligence  of  co-employees,  without 
imposing  that  liability  upon  other  classes  of  employers, 
it  is  settled  that  they  are  not  unconstitutional  as  depriv- 
ing railroads  of  their  property  without  due  process  of 
law,  nor  as  denying  to  them  the  equal  protection  of  the 
law,  within  the  meaning  of  the  Fourteenth  Amendment 
to  the  United  States  Constitution.1 

In  Missouri  Pacific  Ry.  v.  Mackey,  127  U.  S.  205, 
a  fireman  was  injured  through  the  negligence  of  an 
engineer,  both  being  in  the  service  of  the  railroad  com- 
pany. The  fireman  sued  the  railroad  in  a  state  court 
of  Kansas,  under  the  Kansas  statute  of  1874,  which 
reads  as  follows :  — 

"  Every  railroad  company  organized  or  doing  business 
in  this  State  shall  be  liable  for  all  damages  done  to  any 
employee  of  such  company  in  consequence  of  any  negli- 
gence of  its  agents,  or  by  any  mismanagement  of  its 
engineers  or  other  employees,  to  any  person  sustaining 
such  damage." 

The  plaintiff  recovered  a  verdict  for  $12,000,  and, 
after  judgment  in  the  state  court,  the  defendant  carried 
the  case  up  to  the  United  States  Supreme  Court.  That 
court  affirmed  the  judgment,  for  the  following  reasons, 
as  stated  by  Mr.  Justice  Field  :  — 

"  At  the  trial,  and  in  the  Supreme  Court  of  the  State, 
it  was  contended  by  the  defendant  (and  the  contention 

1  Missouri  Pacific  Ry.  v.  Mackey,  127  U.  S.  205,  affirming  Missouri 
Pacific  Ry.  v.  Mackey,  33  Kans.  298  ;  Minneapolis  &c.  Ry.  v.  Herrick, 
127  U.  S.  210,  affirming  Herrick  v.  Minneapolis  &c.  Ry.,  31  Minn.  11 ; 
Bucklew  v.  Central  Iowa  Ry.,  64  Iowa,  603  ;  Missouri  Pacific  Ry.  v. 
Haley,  25  Kans.  35  ;  Chicago  &c.  Ry.  v.  Pontius,  52  Kans.  264  ;  Chicago 
&c.  Ry.  v.  Pontius,  157  U.  S.  209  ;  Chicago  &c.  Ry.  v.  Stahley,  62  Fed. 
Rep.  363. 


118  EMPLOYERS'  LIABILITY  ACTS. 

is  renewed  here)  that  the  law  of  Kansas  of  1874  is  in 
conflict  with  the  Fourteenth  Amendment  of  the  Consti- 
tution of  the  United  States,  in  that  it  deprives  the 
company  of  its  property  without  due  process  of  law,  and 
denies  to  it  the  equal  protection  of  the  laws. 

"  In  support  of  the  first  position  the  company  calls 
the  attention  of  the  court  to  the  rule  of  law  exempting 
from  liability  an  employer  for  injuries  to  employees 
caused  by  the  negligence  or  incompetency  of  a  fellow- 
servant,  which  prevailed  in  Kansas  and  in  several  other 
States  previous  to  the  act  of  1874,  unless  he  had 
employed  such  negligent  or  incompetent  servant  with- 
out reasonable  inquiry  as  to  his  qualifications,  or  had 
retained  him  after  knowledge  of  his  negligence  or 
incompetency.  The  rule  of  law  is  conceded  where  the 
person  injured,  and  the  one  by  whose  negligence  or 
incompetency  the  injury  is  caused,  are  fellow-servants 
in  the  same  common  employment,  and  acting  under 
the  same  immediate  direction.  Chicago  &  Milwaukee 
Ry.  v.  Ross,  112  U.  S.  377,  389.  Assuming  that  this 
rule  would  apply  to  the  case  presented  but  for  the  law 
of  Kansas  of  1874,  the  contention  of  the  company, 
as  we  understand  it,  is  that  that  law  imposes  upon 
railroad  companies  a  liability  not  previously  existing, 
in  the  enforcement  of  which  their  property  may  be 
taken ;  and  thus  authorizes  in  such  cases  the  taking1 

*  o 

of  property  without  due  process  of  law,  in  violation  of 
the  Fourteenth  Amendment.  The  plain  answer  to  this 
contention  is,  that  the  liability  imposed  by  the  law  of 
.1874  arises  only  for  injuries  subsequently  committed ; 
it  has  no  application  to  past  injuries,  and  it  cannot  be 
successfully  contended  that  the  State  may  not  prescribe 


LIABILITY    PECULIAR   TO    RAILROAD   EMPLOYERS.      119 

the  liabilities  under  which  corporations  created  by  its 
laws  shall  conduct  their  business  in  the  future,  where 
no  limitation  is  placed  upon  its  power  in  this  respect 
by  their  charters.  Legislation  to  this  effect  is  found 
in  the  statute  books  of  every  State.  The  hardship  or 
injustice  of  the  law  of  Kansas  of  1874,  if  there  be  any, 
must  be  relieved  by  legislative  enactment.  The  only 
question  for  our  examination,  as  the  law  of  1874  is 
presented  to  us  in  this  case,  is  whether  it  is  in  conflict 
with  clauses  of  the  Fourteenth  Amendment.  The  sup- 
posed hardship  and  injustice  consist  in  imputing  liability 
to  the  company  where  no  personal  wrong  or  negligence 
is  chargeable  to  it  or  to  its  directors.  But  the  same 
hardship  and  injustice,  if  there  be  any,  exist  when  the 
company,  without  any  wrong  or  negligence  on  its  part, 
is  charged  with  injuries  to  passengers.  Whatever  care 
and  precaution  may  be  taken  in  conducting  its  business 
or  in  selecting  its  servants,  if  injury  happen  to  the 
passengers  from  the  negligence  or  incompetency  of 
the  servants,  responsibility  therefor  at  once  attaches  to 
it.  The  utmost  care  on  its  part  will  not  relieve  it  from 
liability  if  the  passenger  injured  be  himself  free  from 
contributory  negligence.  The  law  of  1874  extends 
this  doctrine  and  fixes  a  like  liability  upon  railroad 
companies  where  injuries  are  subsequently  suffered  by 
employees,  though  it  may  be  by  the  negligence  or 
incompetency  of  a  fellow-servant  in  the  same  general 
employment  and  acting  under  the  same  immediate 
direction.  That  its  passage  was  within  the  competency 
of  the  legislature  we  have  no  doubt. 

"  The  objection,  that  the  law  of  1874  deprives  the 
railroad  companies  of  the  equal  protection  of  the  laws, 


120  EMPLOYERS'  LIABILITY  ACTS. 

is  even  less  tenable  than  the  one  considered.  It  seems 
to  rest  upon  the  theory  that  legislation  which  is  special 
in  its  character  is  necessarily  within  the  constitutional 

V 

inhibition,  but  nothing  can  be  further  from  the  fact. 
The  greater  part  of  all  legislation  is  special,  either  in 
the  objects  sought  to  be  attained  by  it,  or  in  the  extent 
of  its  application.  Laws  for  the  improvement  of  muni- 
cipalities, the  opening  and  widening  of  particular  streets, 
the  introduction  of  water  and  eras,  and  other  arrange- 

^7         J  ^j 

ments  for  the  safety  and  convenience  of  their  inhab- 
itants, and  laws  for  the  irrigation  and  drainage  of 

'  O  O 

particular  lands,  for  the  construction  of  levees  and  the 
bridging  of  navigable  rivers,  are  instances  of  this  kind. 
Such  legislation  does  not  infringe  upon  the  clause  of 
the  Fourteenth  Amendment,  requiring  equal  protection 
of  the  laws,  because  it  is  special  in  its  character ;  if  in 
conflict  at  all  with  that  clause,  it  must  be  on  other 
grounds.  And  when  legislation  applies  to  particular 
bodies  or  associations,  imposing  upon  them  additional 
liabilities,  it  is  not  open  to  the  objection  that  it  denies 
to  them  the  equal  protection  of  the  laws,  if  all  persons 
brought  under  its  influence  are  treated  alike  under  the 
same  conditions.  A  law  giving  to  mechanics  a  Hen  on 
buildings  constructed  or  repaired  by  them,  for  the 
amount  of  their  work,  and  a  law  requiring  railroad  cor- 
porations to  erect  and  maintain  fences  along  their 
roads,  separating  them  from  land  of  adjoining  proprie- 
tors so  as  to  keep  cattle  off  their  tracks,  are  instances 
of  this  kind.  Such  legislation  is  not  obnoxious  to  the 
last  clause  of  the  Fourteenth  Amendment,  if  all  persons 
subject  to  it  are  treated  alike  under  similar  circum- 
stances and  conditions  in  respect  both  of  the  privileges 


121 

conferred  and  the  liabilities  imposed.  It  is  conceded 
that  corporations  are  persons  within  the  meaning  of  the 
amendment.  Santa  Clara  County  r.  Southern  Pacific 
Railroad  Co.,  118  U.  S.  394;  Pembina  Consolidated 
Silver  Mining  and  Milling  Co.  r.  Pennsylvania,  125 
U.  S.  187.  But  the  hazardous  character  of  the  busi- 
ness of  operating  a  railway  would  seem  to  call  for 
special  legislation  with  respect  to  railroad  corporations, 
having  for  its  object  the  protection  of  their  employees 
as  well  as  the  safety  of  the  public.  The  business  of 
other  corporations  is  not  subject  to  similar  dangers  to 
their  employees,  and  no  objections,  therefore,  can  be 
made  to  the  legislation  on  the  ground  of  its  making 
an  unjust  discrimination.  It  meets  a  particular  neces- 
sity, and  all  railroad  corporations  are,  without  distinc- 
tion, made  subject  to  the  same  liabilities.  As  said  by 
the  court  below,  it  is  simplv  a  question  of  legislative 
discretion  whether  the  same  liabilities  shall  be  applied 
to  carriers  by  canal  and  stage-coaches  and  to  persons 
and  corporations  using  steam  in  manufactories.  See 
Missouri  Pacific  Ry.  Co.  r.  Humes,  115  U.  S.  512,  523 ; 
Barbier  r.  Connolly,  113  U.  S.  27 ;  Soon  Hing  r.  Crow- 
ley,  113  U.  S.  703> 

§  85.  Same. 

In  Minneapolis  &c.  Ry.  r.  Emmons,  149  U.  S.  364, 
it  was  held  that  a  statute  of  Minnesota  requiring  all 
railroad  companies  to  fence  their  tracks,  and  making 
them  liable  for  domestic  animals  killed  or  injured  by 
their  negligence,  and  declaring  that  a  failure  to  build 
and  maintain  such  fences  shall  be  deemed  f *'  an  act  of 
negligence  on  the  part  of  such  companies,"  is  constitu- 


122  EMPLOYEES'  LIABILITY  ACTS. 

tional  and  valid.     In  delivering  the  opinion,  Mr.  Justice 
Field  says,  on  page  367  :  — 

"  No  discrimination  is  made  against  any  particular 
railroad  companies  or  corporations  ;  all  are  treated  alike, 
and  required  to  perform  the  same  duty ;  and  therefore 
no  invasion  was  attempted  of  the  equality  of  protection 
ordained  by  the  Fourteenth  Amendment." 

It  has  also  been  decided  that  such  statutes  are  not 
contrary  to  a  constitutional  provision  that  all  laws  shall 
be  of  "  uniform  operation  throughout  the  State."  *  Nor 
are  they  contrary  to  a  clause  which  prohibits  unequal 
and  partial  legislation  on  general  subjects.2  Nor  do 
they  impair  the  obligation  of  preexisting  contracts  in 
the  form  of  a  charter  granted  by  the  State  to  a  private 
corporation.3 

Cases  in  which  other  constitutional  objections  to  such 
legislation  have  been  held  untenable  are  cited  below.4 

In  Alabama,  however,  contrary  to  the  great  weight 
of  authority  cited  above,  it  has  been  decided  that  a 
statute  giving  a  right  of  action  to  the  parent  of  a  minor 
child  killed  by  the  wrongful  act  of  any  agent  or  officer 
of  a  corporation  or  firm,  without  imposing  a  like  liability 
upon  an  individual,  discriminates  against  corporations 
and  firms,  and  is  unconstitutional  under  article  14,  §  12, 
of  the  state  Constitution.5  This  point  does  not  seem  to 
have  been  raised  or  decided  under  the  Employers'  Lia- 
bility Act,  though  many  cases  against  railroads  under 
this  clause  have  been  decided. 

1  McAunich  v.  Mississippi  &c.  Ry.,  20  Iowa,  338. 

2  Ditberner  v.  Chicago  &c.  Ry.,  47  Wis.  138. 

8  Shelby  County  v.  Scearce,  2  Duvall  (Ky.),  576. 

4  Sherlock  v.  Ailing,  93  U.  S.  99 ;  Georgia  Ry.  v.  Oaks,  52  Ga.  410 ; 
Boston  &c.  Ry.  v.  State,  32  N.  H.  215. 
4  Smith  v.  Louisville  &c.  Ry.,  75  Ala.  449. 


CHAPTER  VI. 


MISCELLANEOUS   POINTS. 


Section 

86.  I.  Negligence'  of    person    en- 

trusted with  duty  of  seeing 
that  ways,  etc.,  are  in  proper 
condition. 

87.  Same. 

88.  Same.     Inspectors   of    foreign 

cars. 

89.  Same.     Road-master  and    sec- 

tion foreman. 

90.  Same.     Injury  to  such  person 

himself. 


Section 

91.  II.  Negligence    of    person    to 

whose  orders  plaintiff  was 
bound  to  conform.  Alabama 
cases. 

92.  Same.     English  cases. 

93.  III.  Injury  to  employee  of  in- 

dependent contractor. 

94.  Same.     Contractor  may  act  in 

another  capacity. 


I. 

§  86.  Negligence  of  Person  entrusted  with  Duty  of 
seeing  that  the  Ways,  etc.,  are  in  Proper  Con- 
dition. 

THE  first  section  of  the  Massachusetts  act  of  1887, 
ch.  270,  gives  an  employee  a  right  of  action  against 
an  employer  when  he  is  injured  — 

"  (1)  By  reason  of  any  defect  in  the  condition  of  the 
ways,  works,  or  machinery  connected  with  or  used  in 
the  business  of  the  employer,  which  arose  from,  or  had 
not  been  discovered  or  remedied  owing  to,  the  negli- 
gence of  the  employer,  or  of  any  person  in  the  service 
of  the  employer  and  entrusted  by  him  with  the  duty 
of  seeing  that  the  ways,  works,  or  machinery  were  in 
proper  condition."  The  statutes  of  England,  of  Ala- 


124  EMPLOYEES'  LIABILITY  ACTS. 

bama,  of  Colorado,  and  of  Indiana  all  contain  like 
provisions  upon  this  subject. 

This  clause  in  the  Massachusetts  statute  is  chiefly 
declaratory  of  common-law  principles.  Prior  to  the 
passage  of  the  act,  it  was  there  regarded  as  part  of 
the  employer's  duty  to  use  ordinary  care  in  providing 
suitable  ways,  works,  machinery,  and  plant  for  carry- 
ing on  the  work,  and  he  could  not  escape  liability  to 
an  employee  who  was  injured  by  a  defect  therein  by 
delegating  the  performance  of  this  duty  to  another 
employee.1 

The  common  law  of  England  was  different  from  that 
of  Massachusetts  upon  this  point.  In  England,  before 
the  passage  of  the  act,  the  employer  was  not  liable  for 
injury  to  his  employee  caused  by  the  negligence  of  a 
fellow-servant  who  had  been  entrusted  by  the  master 
with  this  duty.2 

But  since  the  passage  of  the  act  the  employer  is 
liable  for  an  injury  so  caused,  and,  as  the  right  of 
action  is  there  merely  statutory,  the  employee  must 
comply  with  the  terms  and  conditions  of  the  statute.3 

At  common  law  the  employer  was  also  bound  to  use 
ordinary  care  to  provide  proper  employees  to  carry  on 
the  business,  and  could  not  delegate  the  performance 


1  Snow  v.  Housatonic  Ry.,  8  Allen,  441 ;  Oilman  v.  Eastern  Ry.,  13 
Allen,  433  ;  Lawless  v.  Connecticut  River  Ry.,  136  Mass.  1  ;  Ryalls  v. 
Mechanics'  Mills,  150  Mass.  190.     See,  also,  Hough  v.  Railway  Co.,  100 
U.  S.  213  ;  Gardner  v.  Michigan  Central  Ry.,  150  U.  S.  349,  359  ;  Mullan 
v.  Philadelphia  &c.  Steamship  Co.,  78  Pa.  St.  25  ;   Shanny  v.  Andros- 
coggin  Mills,  66  Me.  420  ;  Ashman  v.  Flint  &c.  Ry.,  90  Mich.  567. 

2  Wilson  v.  Merry,  L.  R.  1  H.  L.  Sc.  326. 

3  Griffiths  v.  Dudley,  9  Q.  B.  D.  357  ;  Morrison  v.  Baird,  10  Ct.  of  Sess. 
Cas.  (4th  series),  271 ;  Yarmouth  v.  France,  19  Q.  B.  D.  647. 


MISCELLANEOUS    POINTS.  125 

»» 

of  this  duty  to  any  one  else.  If  he  was  negligent  in 
this  respect,  either  in  procuring  or  in  keeping  incom- 
petent employees  in  his  service,  and  injury  resulted 
to  an  employee  by  reason  of  such  incompetency,  the 
employer  was  liable  in  damages.1 

§  87.    Same. 

To  justify  a  recovery  under  these  statutes  on  the 
ground  of  a  defect  in  the  condition  of  the  defendant's 
ways,  works,  machinery,  or  plant,  it  is  not  sufficient  for 
the  plaintiff  to  show  that  a  defect  existed,  and  that  it 
caused  the  injury :  he  must  also  prove  that  the  defect 
arose  from,  or  had  not  been  discovered  or  remedied 
owing  to,  the  negligence  of  the  employer,  or  of  some 
person  charged  with  that  duty;  .and,  in  the  absence 
of  such  proof,  the  judge  should  direct  a  verdict  for 
the  defendant.2  In  the  Alabama  case  just  cited  a  car- 
repairer  alleged  that  his  injury  was  caused  by  a  defec- 
tive brake  on  a  railroad  car.  While  he  was  engaged 
in  repairing  a  car  which  had  been  put  on  the  repair 
track  for  that  purpose,  and  while  he  was  under  the  car, 
another  car,  belonging  to  another  railroad  company, 
which  car  the  defendant  railroad  was  using,  was  run  in 
upon  the  repair  track  with  such  force  as  to  drive  a 
stationary  car  upon  the  car  which  the  plaintiff  was 
repairing,  causing  his  injuries.  The  foreign  car  had 

1  McPhee  v.  Scully,  163  Mass.  216  ;  Oilman  v.  Eastern  Ry.,  13  Allen, 
433  ;  Keith  v.  New  Haven  &c.  Ry.,  140  Mass.  175  ;  Wabash  Ry.  v.  Mc- 
Daniels,  107  U.  S.  454  ;  Whittaker  v.  Delaware  &c.  Ry.,  126  N.  Y.  544 ; 
Baulec  v.  New  York  &c.  Ry.,  59  N.  Y.  356  ;  Hilts  v.  Chicago  &c.  Ry., 
55  Mich.  437. 

2  Louisville  &c.  Ry.  v.  Davis,  91  Ala.  487  ;  O'Maley  v.  South  Boston 
Gas  Light  Co.,  158  Mass.  135,  137. 


126  EMPLOYERS'  LIABILITY  ACTS. 

4 
a  defective   brake,  which   prevented   its   speed   being 

checked  in  time  to  avoid  the  collision.  It  had  been 
condemned  to  the  repair  track  on  account  of  a  defec- 
tive wheel,  no  defect  having  been  discovered  in  the 
brake  prior  to  the  accident.  The  jury  returned  a  ver- 
dict in  favor  of  the  plaintiff  for  $15,000,  upon  which 
judgment  was  entered  in  the  trial  court. 

In  reversing  this  judgment,  the  Supreme  Court  says 
by  Mr.  Justice  McClellan,  on  page  494 :  "  There  is  evi- 
dence in  this  record  that  the  brake  was  defective ;  but 
this  testimony  exhibits  no  tendency  whatever  to  show 
that  the  defect  was  caused  by  the  negligence  of  the 
defendant,  or  any  employee,  or  had  not  been  discovered 
or  remedied  because  of  any  negligence  on  the  part  of 
the  defendant  or  its  employees.  Without  such  evi- 
dence, no  recovery  could  be  had  under  that  count, 
and  the  court  should  have  so  instructed  the  jury,  as 
requested  in  the  fourth  charge  asked  by  the  defend- 
ant."1 

On  the  other  hand,  the  statute  has  not  the  effect 
of  cutting  down  or  restricting  the  common-law  rights 
of  the  employee,  either  as  to  the  amount  of  damages 
recoverable,  or  as  to  the  requirement  of  notice.  If, 
before  the  passage  of  the  statute,  the  employee  could 
recover,  he  can  now  recover  since  its  passage,  without 
giving  notice  of  the  injury.  Nor  is  his  recovery 
limited  to  the  amount  stated  in  the  act.  In  other 
words,  the  statute  does  not  codify  the  whole  law  upon 
the  subject,  and  does  not  prevent  an  action  at  common 

1  Citing  Atchison  &c.  Ry.  v.  Ledbetter,  21  Am.  &  Eng.  R.  R.  Cases, 
555  ;  8.  c.,  34  Kans.  326. 


MISCELLANEOUS   POINTS.  127 

law,  but  leaves  open  some  common-law  liabilities  and 
some  common-law  defences.1 

§88.  Same.     Inspectors  of  Foreign  Cars. 

At  common  law  in  Massachusetts  a  car-inspector  was 
considered  a  fellow-servant  with  a  brakeman,  engineer, 
etc.,  and  the  railroad  company  was  not  liable  to  the 
others  for  his  negligence  in  failing  to  discover  a  defect 
in  a  foreign  car,  which  the  defendant  company  was 
merely  forwarding  for  another  road  and  not  using  for 
its  own  benefit.2  Under  the  Massachusetts  Employers' 
Liability  Act  of  1887,  however,  a  car-inspector  is  a 
person  entrusted  with  the  duty  of  seeing  that  the 
railroad's  ways,  works,  or  machinery  are  in  proper 
condition.3  As  the  amendatory  act  of  1893,  ch.  359, 
provides  that  "  a  car  in  use  by  or  in  the  possession  of 
a  railroad  company  shall  be  considered  a  part  of  the 
ways,  works,  or  machinery  of  the  company  using  or 
having  the  same  in  possession,  within  the  meaning  of 
this  act,  whether  such  car  is  owned  by  it  or  by  some 
other  company  or  person,"  it  follows  that  a  railroad 
company  is  liable  to  one  of  its  employees  who  is 
injured  by  the  negligence  of  its  car-inspector  in  fail- 
ing to  properly  inspect  a  foreign  car.4 

Even  under  the  act  of  1887,  before  the  passage  of 

1  Ryalls  v.  Mechanics'  Mills,  150  Mass.  190. 

2  Mackiu  v.  Boston  &  Albany  Ry.,  135  Mass.  201.     See,  also,  Kelly  v. 
Abbot,  63  Wis.  307  ;  Smith  v.  Flint  &c.  Ry.,  46  Mich.  258. 

8  Bowers  v.  Connecticut  River  Ry.,  162  Mass.  310. 

4  This  statute  of  1893  changes  the  rule  of  construction  under  the  act 
of  1887,  adopted  in  Thyng  v.  Fitchburg  Ry.,  156  Mass.  13,  in  which  it 
was  held  that  such  a  foreign  car  was  not  a  part  of  the  "  ways,  works,  or 
machinery  connected  with  or  used  in  the  business  of  the  employer." 


128  EMPLOYEES'  LIABILITY  ACTS. 

the  act  of  1893,  a  railroad  company,  which  allowed  a 
custom  or  habit  to  prevail  of  not  inspecting  foreign 
cars  which  came  from  a  particular  direction,  was  liable 
to  an  employee  who  was  injured  by  such  negligence 
on  a  car  which  came  from  that  direction  and  had  not 
been  inspected;  for  such  custom  or  habit  constitutes 
negligence  either  of  the  railroad  company  itself,  or  of 
its  superintendent,  or  of  some  person,  in  its  service,  in 
failing  to  provide  proper  inspection.1  And  at  common 
law,  where  the  inspector  is  incompetent,  the  defendant 
is  liable  to  its  injured  employee  though  the  car  belongs 
to  another  road  and  the  defendant  is  merely  forward- 
ing it.2 

If  the  employer  uses  a  foreign  car  for  his  own 
benefit,  he  is  bound  by  the  rule  which  requires  him  to 
furnish  proper  appliances,  even  in  those  States  which 
hold  the  contrary,  when  he  merely  forwards  the  foreign 
car  without  using  it  for  his  benefit.3 

In  Walsh  v.  New  York  &c.  Ry.,  160  Mass.  571,  it 
was  held  that  the  jury  was  warranted  in  finding,  on 
the  evidence,  that  by  the  law  of  Connecticut,  where  the 
injury  occurred,  a  railroad  company  is  bound  to  see 
that  foreign  cars  are  reasonably  inspected,  even  if  they 
are  not  used  by  the  defendant ;  and  that  by  the  Con- 
necticut law  the  railroad  cannot  escape  liability  by 
delegating  this  duty  to  a  competent  inspector,  but  is 
liable  for  his  negligence  in  failing  to  inspect.  The 
jury  having  found  such  to  be  the  law  of  Connecticut, 

1  Coffee  v.  New  York  &c.  Ry.,  155  Mass.  21. 

2  Keith  v.  New  Haven  &c.  Ry.,  140  Mass.  175. 

8  Spaulding  v.  Flynt  Granite  Co.,  159  Mass.  587  ;  Cowan  v.  Chicago 
&c.  Ry.,  80  Wis.  284. 


MISCELLANEOUS   POINTS.  129 

the  Massachusetts  court  held  that  the  injured  employee 
was  entitled  to  recover  damages  in  Massachusetts, 
although  the  common  law  of  Massachusetts  was  the 
contrary.1 

§  89.  Same.  Road-master  and  Section  Foreman. 
A  road-master  and  a  section  foreman  of  a  railroad 
company  are  persons  entrusted  with  the  duty  of  seeing 
that  the  track  is  kept  in  good  condition,  and  if  they 
are  negligent  .in  failing  to  discover  or  remedy  a  defect 
in  the  track,  by  reason  of  which  a  locomotive  is  derailed 
and  the  engineer  injured,  the  common  employer  is  liable 
under  the  Employers'  Liability  Act.2 

§  90.  Same.     Injury  to  Such  Person  Himself. 

Where  the  injured  employee  was  himself  entrusted 
with  the  duty  of  seeing  that  the  ways,  etc.,  were  in 
proper  condition,  he  cannot  recover  under  the  statute 
for  a  defect  in  their  condition.  In  Birmingham  Fur- 
nace Co.  v.  Gross,  97  Ala.  220,  a  master  mechanic, 
while  repairing  a  tall  chimney  of  a  gas  furnace,  was 
overcome  by  gas,  fell  off  the  ladder,  and  was  killed. 
His  administrator  claimed  that  the  failure  to  provide 
a  scaffold  or  platform  instead  of  a  ladder  was  a  defect 
in  the  condition  of  the  ways,  works,  etc.,  for  which 
the  defendant  was  liable.  But  it  further  appeared  that 
the  deceased  himself  was  the  person  entrusted  with  the 
duty  of  seeing  that  the  ways,  works,  machinery,  or 
plant  were  in  proper  condition,  and  it  was  accordingly 
held  that  the  plaintiff  could  not  recover,  and  that  the 

1  Mackin  v.  Boston  &  Albany  Ry.,  135  Mass.  201. 

2  Kansas  City  &c.  Ry.  v.  Webb,  97  Ala.  157. 


130  EMPLOYEES'  LIABILITY  ACTS. 

presiding  justice   should   have   ordered   a  verdict   for 
the  defendant. 

II. 

§  91.  Negligence  of  Person  to  whose  Orders  Plaintiff 
was  bound  to  conform.  Alabama  Cases. 

The  third  clause  of  §  2590  of  the  Alabama  Code 
gives  a  right  of  action  to  an  employee  who  is  injured 
by  reason  of  the  negligence  of  any  person  in  the  ser- 
vice of  the  employer  to  whose  orders  or  directions  the 
employee,  at  the  time  of  the  injury,  was  bound  to  con- 
form, and  did  conform,  if  his  injury  results  from  having 
so  conformed.  The  English  act  of  1880  contains  a 
like  provision  in  section  1,  sub-section  3.  The  Indiana 
statute  of  1893  also  has  a  like  clause;  but  the  act 
itself  does  not  apply  to  employers  in  general,  but 
merely  to  corporate  employers,  and  excepts  municipal 
corporations.  The  statutes  of  Massachusetts  and  of 
Colorado  do  not  render  an  employer  liable  for  the  neg- 
ligence of  such  person. 

It  has  been  held  that  this  clause  in  the  Alabama 
act  applies  only  to  special  orders  or  directions,  in 
respect  to  the  particular  service  in  which  the  employee 
is  engaged  at  the  time  of  the  injury,  as  distinguished 
from  a  general  order  or  direction  in  reference  to  the 
discharge  of  his  general  service,  growing  out  of  the 
nature  and  scope  of  his  employment.1 

To  recover  under  this  clause,  the  plaintiff  must  estab- 
lish four  propositions :  (1)  that  the  person  who  gave 
the  erders  was  in  the  service  of  the  defendant;  (2) 
that  the  plaintiff  was  bound  to  conform  to  the  orders 

1  Mobile  &c.  Ry.  v.  George,  94  Ala.  199,  219. 


MISCELLANEOUS   POINTS.  131 

of  such  person ;  (3)  that  he  did  conform  to  such  orders, 
and  that  his  injury  resulted  from  having  so  conformed ; 
and  (4)  that  such  person  was  negligent  in  giving  such 
orders. 

In  Mobile  &c.  Ry.  v.  George,  94  Ala.  199,  a  brake- 
man  was  injured  while  attempting  to  uncouple  cars 
from  an  engine.  One  count  alleged  that  the  plaintiff 
was  ordered  by  the  yard-master  to  uncouple  the  cars 
from  the  engine,  but  there  was  no  evidence  that,  at  the 
time  of  the  injury,  the  yard-master  gave  him  an  order 
to  uncouple  the  cars  from  the  engine.  As  there  was 
no  special  order  to  do  the  uncoupling  of  those  particu- 
lar cars  and  engine,  it  was  held  that  the  plaintiff  could 
not  recover  under  this  clause. 

An  order  to  a  switchman  to  "  cut  off  one  car  "  from 
a  freight  train  given  by  a  foreman  who  was  five  or  six 
car  lengths  away,  where  there  was  no  emergency  or 
cause  for  haste,  will  not  justify  the  switchman  in  under- 
taking to  uncouple  freight-cars  while  in  motion,  and  if 
he  is  injured  in  the  attempt  the  railroad  company  is 
not  liable  therefor.1 

§  92.  Same.     English  Cases. 

In  England  it  has  been  decided  that  it  is  not  neces- 
sary that  the  order  complained  of  should  be  in  express 
words,  but  that  it  may  be  implied  from  the  surround- 
ing circumstances.  In  Millward  v.  Midland  Ry.,  14  Q. 
B.  D.  68,  the  plaintiff,  a  boy  fourteen  years  of  age, 
whose  duty  it  was  to  assist  a  carman  or  van-driver  to 
unload  the  van,  was  injured  by  two  heavy  iron  window- 
frames  falling  upon  him,  which  had  been  left  unsecured 

1  Davis  v.  Western  Ry.,  104  Ala.  000  ;  18  So.  Rep.  173. 


132  EMPLOYERS'  LIABILITY  ACTS. 

in  the  van.  At  the  time  of  the  accident  the  plaintiff 
and  the  driver  were  unloading  three  window-frames, 
which  were  secured  by  two  pieces  of  tarred  string.  The 
driver  untied  the  string  near  the  tail  end  of  the  van,  and 
the  plaintiff  untied  the  other  string  at  the  front  of  the 
van.  The  plaintiff  testified  that  the  driver  gave  him 
no  order  to  untie  the  string  upon  this  occasion,  but 
that  he  had  done  so  on  other  occasions,  and  that  the 
driver  saw  him  untie  it  upon  this  occasion  and  made  no 
objection.  The  driver  then  pulled  away  one  of  the 
frames  without  securing  the  other  two,  and  immediately 
afterwards  the  two  remaining  frames  fell  upon  the 
plaintiff.  In  an  action  under  this  clause  of  the  act  it 
was  held  that  the  evidence  would  warrant  a  finding 
that  the  injury  was  caused  by  the  negligence  of  a  person 
to  whose  orders  the  plaintiff  was  bound  to  conform  and 
did  conform,  and  that  the  injury  resulted  from  having 
so  conformed,  and  that  the  common  employer  was 
liable. 

In  Wild  v.  Waygood,  [1892]  1  Q.  B.  783,  the  Court 
of  Appeal  held  that  the  plaintiff  was  entitled  to  go  to 
the  jury,  and  that  the  defendant  was  liable  under  sub- 
section 3  of  section  1  of  the  English  act  of  1880,  and 
that  the  plaintiff's  injury  was  the  result  of  conforming 
to  the  orders  of  one  Duplea.  Duplea  and  the  plaintiff, 
while  in  the  employ  of  the  defendant,  were  engaged  in 
constructing  a  lift  in  a  house,  and  during  the  course  of 
the  work  Duplea  ordered  the  plaintiff  to  put  a  plank 
across  the  well  of  the  lift  and  to  stand  upon  it.  The 
plaintiff  did  so,  and  while  he  was  standing  on  the  plank 
Duplea  pulled  the  rope  which  started  the  lift,  causing 
one  end  of  the  plank  to  fall,  and  the  plaintiff,  to  save 


MISCELLANEOUS   POINTS.  133 

himself  from  falling  down  the  well,  caught  hold  of 
another  rope,  which  pulled  him  up  to  the  pulley  and 
caused  the  injuries  complained  of.  The  defendant 
contended  that  the  injury  was  not  caused  by  conform- 
ing to  the  order  of  Duplea,  and  the  lower  court  so 
decided;  but  the  Court  of  Appeal  reversed  this  judg- 
ment. Lindley,  L.  J.,  says  on  pages  793,  794 :  "  What 
was  it  that  produced  the  injury  to  the  plaintiff?  It 
was  the  joint  effect  of  the  plaintiff  being  on  the  plank 
and  the  carelessness  of  Duplea  in  pulling  the  string. 
Those  two  things  are  so  connected  that  it  is  impossible 
to  say  that  the  injury  was  not  caused  by  these  two 
things,  viz.,  negligence  of  the  person  giving  the  order, 
and  conformity  with  the  order.  Under  this  state  of 
things  I  think  the  section  plainly  applies,  and  I  cannot 
help  thinking  that  the  Divisional  Court  would  have  had 
no  difficulty  if  it  had  not  been  for  the  last  part  of  Lord 
Coleridge's  judgment  in  Howard  v.  Bennett,  58  L.  J. 
(Q.  B.)  129;  60  L.  T.  152.  The  decision  of  that  case 
seems  to  be  right  enough,  but  that  which  is  contained 
in  the  last  part  of  Lord  Coleridge's  judgment  I  must 
say  I  cannot  agree  to." 

In  Howard  v.  Bennett,  58  L.  J.  (Q.  B.)  129,  it  was 
held  that  the  plaintiff  was  not  entitled  to  a  verdict, 
because  the  person  to  whose  order  he  conformed  was 
not  a  person  to  whose  order  he  was  bound  to  conform. 
The  plaintiff  worked  on  a  calico-printing  machine  as  a 
back-tenter,  and  one  Dean  worked  on  the  same  machine 
as  a  printer.  The  machine  required  two  men  to  work 
it,  and  there  were  eleven  such  machines  in  the  room, 
under  a  foreman.  The  plaintiff's  duty  was  to  keep  the 
calico  straight  as  it  passed  through  the  machine.  Dean 


134  EMPLOYERS'  LIABILITY  ACTS. 

stood  at  the  opposite  end  of  the  machine,  and  it  was  one 
of  his  duties  to  start  it.  At  the  time  of  the  accident, 
Dean  told  the  plaintiff  to  clean  the  blanket  which  went 
over  the  cylinder,  and  while  the  plaintiff  was  so  engaged, 
with  his  fingers  between  the  rollers  and  the  cylinder, 
Dean,  without  warning,  started  the  machine,  and  the 
plaintiff's  fingers  were  cut  off.  It  was  held  that  Dean 
was  merely  a  fellow-workman,  for  whose  negligence  the 
common  employer  was  not  liable  under  the  act. 

III. 

§  93.  Injury  to  Employee  of  Independent  Con- 
tractor. 

The  fourth  section  of  the  Massachusetts  Employers' 
Liability  Act  reads  as  follows  :  — 

"Section  4.  Whenever  an  employer  enters  into  a 
contract,  either  written  or  verbal,  with  an  independent 
contractor  to  do  part  of  such  employer's  work,  or  when- 
ever such  contractor  enters  into  a  contract  with  a  sub- 
contractor to  do  all  or  any  part  of  the  work  comprised 
in  such  contractor's  contract  with  the  employer,  such 
contract  or  sub-contract  shall  not  bar  the  liability  of 
the  employer  for  injuries  to  the  employees  of  such 
contractor  or  sub-contractor,  by  reason  of  any  defect  in 
the  condition  of  the  ways,  works,  machinery,  or  plant, 
if  they  are  the  property  of  the  employer,  or  furnished 
by  him,  and  if  such  defect  arose,  or  had  not  been  dis- 
covered or  remedied,  through  the  negligence  of  the 
employer  or  some  person  entrusted  by  him  with  the 
duty  of  seeing  that  they  were  in  proper  condition." 

Section  3  of  the  Colorado  act  contains  a  like  provi- 
sion. 


MISCELLANEOUS   POINTS.  135 

The  statutes  of  England,  of  Alabama,  and  of  Indiana 
do  not  give  the  employee  of  an  independent  contractor 
any  remedy  against  the  person  who  employs  the  inde- 
pendent contractor.  Nor  does  the  common  law  of  these 
jurisdictions  confer  a  right  of  action  against  such  person 
for  personal  injuries  caused  to  such  employee.1 

The  purpose  of  section  4  of  the  Massachusetts  act  of 
1887,  ch.  270,  relating  to  independent  contractors,  is 
61  to  enlarge  the  liability  of  the  employer ;  otherwise  it 
is  meaningless.  The  inference  from  the  section  plainly 
is  that  the  employer  should  be  liable  when  a  contractor 
does  part  of  his  work  and  an  employee  of  the  con- 
tractor is  injured  by  reason  of  a  defect  in  the  condition 
of  the  ways,  works,  machinery,  or  plant  furnished  by 
the  employer  to  the  contractor,  which  has  not  been 
discovered  or  remedied  through  the  negligence  of 
the  employer,  or  of  some  person  entrusted  by  him  with 
the  duty  of  seeing  that  they  were  in  proper  condition." 2 

Independent  of  statute  the  rule  is  firmly  established 
at  common  law  that  an  employee  of  an  independent 
contractor  cannot  recover  of  the  person  employing  such 
contractor  for  a  personal  injury  caused  by  the  negli- 
gence of  the  contractor  or  of  his  employees.3 

1  Scarborough  v.  Alabama  Midland  Ry.,  94  Ala.  497  ;  Rome  &c.  Ry.  v. 
Chasteen,  88  Ala.  591  ;  Vincennes  Water  Co.  v.  White,  124  Ind.  376  ; 
Johnson  v.  Lindsay,  23  Q.  B.  D.  508 ;  8.  c.,  [1891]  A.  C.  371 ;  Cameron 
v.  Nystrom,  [1893]  A.  C.  308. 

2  Per  Morton,  J.,  for  the  court  in  Toomey  v.  Donovan,  158  Mass.  232, 
236. 

3  Harkins  v.  Standard  Sugar  Refinery,  122  Mass.  400  ;  Kansas  Central 
Ry.  v.  Fitzsinunons,  18  Kans.  34  ;  Knight  v.  Fox,  5  Exch.  721 ;  Kelly  v. 
New  York,  11  N.  T.  432  ;  Boswell  v.  Laird,  8  Cal.  469  ;  Rome  &c.  Ry.  v. 
Chasteen,  88  Ala.  591  ;  Scarborough  v.  Alabama  Midland  Ry.,  94  Ala.  497; 
McCafferty  v.  Spuyten  Duyvil  &c.  Ry.,  61  N.  Y.  178  ;  Vincennes  Water 
Co.  v.  White,  124  Ind.  376  ;  Hughes  v,  Cincinnati  &c.  Ry.,  39  Ohio  St.  461. 


136  EMPLOYERS'  LIABILITY  ACTS. 

§  94.  Same.     Contractor  may  act  in  Another 
Capacity. 

The  same  person  may  act  both  in  the  capacity  of 
an  independent  contractor  and  of  a  person  entrusted 
by  the  employer  with  the  duty  of  seeing  that  the  ways, 
works,  machinery,  or  plant  owned  or  furnished  by  the 
employer  are  in  proper  condition.  The  two  capacities 
are  not  inconsistent.  "  One  person  may  sustain  different 
relations  to  another,  as  well  as  different  relations  to 
different  persons."  If  the  person  entrusted  with  this 
duty  by  the  employer  is  negligent  in  its  discharge, 
the  employer  is  not  relieved  of  liability  by  proof  that 
such  person  is  also  an  independent  contractor,  or  sub- 
contractor, who  hired  the  plaintiff  and  had  power  to 
discharge  him  and  to  control  his  work.1 

1  Toomey  v.  Donovan,  158  Mass.  232,  236. 


CHAPTER  VII. 


ATTRIBUTES  PECULIAR  TO  INJURIES  RESULTING  IN  DEATH. 


Section 

95.  Scope  of  chapter. 

96.  No  action  for  death  at  common 

law.     Early  statutes. 

97.  Survival   of  action   when   the 

death  is  not  instantaneous, 
or  is  preceded  by  conscious 
suffering. 

98.  Release  by  widow  or  next  of 

kin. 

99.  Survival  of  action  when  death 

is  instantaneous  or  without 
conscious  suffering. 

100.  Where  employee  who  has  con- 

sciously suffered  leaves  no 
widow  or  dependent  next  of 
kin. 

101.  What  constitutes  instantaneous 

death,  or  death  without  con- 
scious suffering. 

102.  Concurring  causes   of    death, 


Section 

for  one  of  which  defendant  is 
not  culpable. 

103.  Claim  for  damages  as  ground 

for  administration. 

104.  Same. 

105.  Who  may  sue  when  employee 

dies  before  action  is  brought. 

106.  Same. 

107.  Former  suit  or  judgment  by 

wrong  person  no  bar  to  suit 
by  right  person. 

108.  Domestic  administrator's  right 

to  sue  for  injury  received  in 
another  State. 

109.  Foreign   administrator's  right 

to  sue. 

110.  Same.     Author's  view. 

111.  Who  are  "  dependent "  upon 

the  employee. 

112.  Action  by  dependent  in  Massa- 

chusetts. 


§  95.  Scope  of  Chapter. 

THIS  chapter  treats  (1)  of  the  survival  of  actions ; 
(2)  of  the  proper  person  to  bring  suit  when  the 
employee  dies  before  action  brought ;  (3)  of  what  per- 
sons are  entitled  to  the  proceeds  of  the  suit,  if  any; 
(4)  of  the  release  of  damages ;  (5)  whether  a  claim  for 
damages  under  the  act  is  ground  for  granting  adminis- 
tration ;  (6)  who  are  "  dependents "  within  the  terms 


138  EMPLOYEES'  LIABILITY  ACTS. 

of  the  statute.     It  relates  to  certain  attributes  which 
are  peculiar  to  injuries  resulting  in  death. 

§  96.  No  Action  for  Death  at  Common  Law.     Early 

Statutes. 

Irrespective  of  statute,  no  action  can  be  maintained 
for  a  personal  injury  resulting  in  death,  whether  the 
death  is  caused  by  the  negligence  of  an  employer  or 
any  one  else.  At  common  law,  the  death  of  a  human 
being  was  not  considered  a  proper  ground  of  an  action 
for  damages.1 

A  like  rule  applies  in  the  admiralty  courts ;  and  it  is 
well  settled  that,  in  the  absence  of  an  Act  of  Congress 
or  of  a  state  statute  giving  a  right  of  action  for  the 
negligent  killing  of  a  human  being  on  the  high  seas  or 
on  waters  navigable  from  the  sea,  no  suit  can  be  main- 
tained in  admiralty  therefor.2 

This  rule  of  the  common  law  has  been  modified  or 
changed  by  statute  in  England  and  in  nearly  all  the 
States.  In  the  case  of  Insurance  Co.  v.  Brame,  95 
U.  S.  754,  759,  Mr.  Justice  Hunt  says  for  the  court: 
"  By  the  common  law,  actions  for  injury  to  the  person 

1  Carey  v.  Berkshire  Ry.,  1  Cush.  (Mass.)  475  ;  Connecticut  Mut.  Ins. 
Co.  v.  New  York  &c.  Ry.,  25  Conn.  265  ;  Eden  v.  Lexington  &c.  Ry.,  14 
B.  Monroe  (Ky.),  204  ;  Worley  v.  Cincinnati  &c.  Ry.,  1  Handy  (Ohio), 
481  ;  Hubgh  v.  New  Orleans  &c.   Ry.,  6  La.  Ann.    495  ;  Hermann  v. 
Carrolltou  Ry.,  11   La.  Ann.  5  ;  Green  v.  Hudson  River  Ry.,  2  Keyes 
(N.  Y.),  294  ;  Kramer  v.  Market  Street  Ry.,  25  Cal.  434  ;  Indianapolis 
&c.  Ry.  v.  Keely,  23  Ind.  133  ;  Hyatt  v.  Adams,  16  Mich.  180  ;  Stewart 
v.  Louisville  &c.  Ry.,  83  Ala.  493, 495  ;  Harris  v.  McNamara,  97  Ala.  181, 
182  ;  Grosso  v.  Delaware  &c.  Ry.,  50  N.  J.  L.  317  ;  Insurance  Co.  v. 
Brame,  95  U.  S.  754  ;  The  Harrisburg,  119  U.  S.  199  ;  Baker  v.  Bolton, 
1  Camp.  493.     Contra,  James  v.  Christy,  18  Mo.  162  ;  Shields  v.  Yonge, 
15  Ga.  349  ;  McDowell  v.  Georgia  Ry.,  60  Ga.  320. 

2  The  Harrisburg,  119  U.  S.  199  ;  The  Alaska,  130  U.  S.  201. 


ATTRIBUTES   PECULIAR   TO   FATAL   INJURIES.     139 

abate  by  death,  and  cannot  be  revived  or  maintained 
by  the  executor  or  the  heir.  By  the  Act  of  Parlia- 
ment of  August  21,  1846,  9  &  10  Viet.,1  an  action 
in  certain  cases  is  given  to  the  representatives  of  the 
deceased.  This  principle,  in  various  forms  and  with 
various  limitations,  has  been  incorporated  into  the 
statutes  of  many  of  our  States." 

Under  the  Massachusetts  statute  of  1842,  providing 
that  "  the  action  of  trespass  on  the  case  for  damage  to 
the  person  shaU  hereafter  survive,"  it  has  been  held 
that  the  executor  or  administrator  of  a  person  negli- 
gently killed  by  the  defendant  may  maintain  an  action 
therefor  when  the  death  was  not  instantaneous,2  but 
could  not  maintain  such  an  action  when  the  death  was 
instantaneous,3  for  the  reason  that  the  statute  supposes 
the  deceased  to  have  been  once  entitled  to  an  action 
himself. 

The  fact  that  the  deceased  remained  in  an  uncon- 
scious condition  from  the  time  of  his  injury  to  his  death 
does  not  prevent  a  recovery  by  his  executor  or  admin- 
istrator, under  the  act  of  1842,  if  the  death  was  not 
instantaneous.  No  damages  can  be  recovered  for  his 
physical  or  mental  suffering,  as  he  is  deemed  to  have 
had  none  during  his  unconsciousness ;  but  damages 
may  be  recovered  for  the  expenses  of  illness  and  loss 
incurred  before  death  by  reason  of  the  negligence.4 

When  the  survival  of  an  action  to  the  executor  or 

1  Known  as  Lord  Campbell's  Act,  being  cap,  93  of  9  &  10  Victoria. 

2  Hollenbeck  v.  Berkshire  Ry.,  9  Cush.  478  ;  Bancroft  v.  Boston  &c. 
Ry.,  11  Allen,  34. 

8  Kearney  v.  Boston  &c.  Ry.,  9  Cush.  108  ;  Moran  v.  Rollings,  125 
Mass.  93. 

4  Bancroft  v.  Boston  &c.  Ry.,  11  Allen,  34. 


140  EMPLOYERS'  LIABILITY  ACTS. 

administrator  depends  upon  the  fact  that  the  death  was 
not  instantaneous,  the  burden  of  proving  that  fact  rests 
upon  the  plaintiff.1 

§  97.  Survival  of  Action  when  the  Death  is  not  Instan- 
taneous, or  is  preceded  by  Conscious  Suffering. 

The  various  Employers'  Liability  Acts  change  the 
rule  of  the  common  law  relating  to  the  survival  of 
actions,  and  provide  that  the  right  of  action  given 
thereby  shall  survive  to  the  personal  representative  of 
the  deceased  employee,  or  to  some  member  of  his  family. 

The  Massachusetts  act  recognizes  two  kinds  of  death, 
and  attaches  different  consequences  to  them.  The  first 
section  relates  to  a  death  which  is  not  instantaneous, 
or  is  preceded  by  conscious  suffering,2  and  reads  as 
follows :  — 

"  In  case  the  injury  results  in  death,  the  legal  repre- 
sentatives of  such  employee  shall  have  the  same  right 
of  compensation  and  remedies  against  the  employer  as 
if  the  employee  had  not  been  an  employee  of  nor  in  the 
service  of  the  employer,  nor  engaged  in  its  work." 

The  above  section  of  the  original  act  was  amended 
by  the  act  of  1892,  ch.  260,  §  1,  by  adding  the  follow- 
ing words :  — 

"  And  in  case  such  death  is  not  instantaneous,  or  is 
preceded  by  conscious  suffering,  said  legal  representa- 
tives may,  in  the  action  brought  under  this  section, 
except  as  hereinafter  provided,  also  recover  damages  for 
such  death.  The  total  damages  awarded  hereunder, 

1  Corcoran  v.  Boston  &  Albany  Ry.,  133  Mass.  507  ;  Riley  v.  Connecti- 
cut River  Ry.,  135  Mass.  292. 

2  Daly  v.  New  Jersey  Steel  Co.,  155  Mass.  1,  3. 


ATTK1BUTES   PECULIAR   TO   FATAL   INJURIES,      141 

both  for  said  death  and  said  injury,  shall  not  exceed 
five  thousand  dollars,  and  shall  be  apportioned  by  the 
jury  between  the  legal  representatives  and  the  per- 
sons, if  any,  entitled  under  the  succeeding  section  of 
this  act  to  bring  an  action  for  instantaneous  death. 
If  there  are  no  such  persons,  then  no  damages  for  such 
death  shall  be  recovered,  and  the  damages,  so  far  as 
the  same  are  awarded  for  said  death,  shall  be  assessed 
with  reference  to  the  degree  of  culpability  of  the  em- 
ployer herein,  or  the  person  for  whose  negligence  he  is 
made  liable." 

The  effect  of  these  two  sections  is  to  empower  the 
"  legal  representatives "  of  the  deceased  employee  to 
sue  and  recover  damages  for  the  conscious  suffering  of 
the  deceased  from  the  time  of  the  injury  to  his  death  ; 
and  also,  if  he  left  a  widow,  or  dependent  next  of  kin, 
^o  recover  damages  for  such  death  as  a  substantive 
cause  of  action.  Under  the  original  act  of  1887,  a 
death  preceded  by  conscious  suffering  was  not  a  sub- 
stantive cause  of  action,  and  the  executor  or  adminis- 
trator could  not  recover  damages  for  such  death  itself, 
but  could  recover  only  for  his  conscious  suffering.1 
The  amendment  of  1892,  therefore,  increases  the  lia- 
bility of  the  employer. 

Under  these  sections  the  damages  recovered  for  the 
conscious  suffering  of  the  deceased  seem  to  constitute 
assets  of  his  estate,  and  are  therefore  subject  to  the 
claims  of  his  creditors,  and  to  the  operation  of  his  will. 
The  damages  recovered  for  the  death  itself,  however, 
seem  to  form  no  part  of  the  assets  of  the  estate,  but 

1  Ramsdell  v.  New  York  &c.  Ry.,  151  Mass.  245  ;  Clark  v.  New  York 
&c.  Ry.,  160  Mass.  39. 


142  EMPLOYERS'  LIABILITY  ACTS. 

to  belong  to  the  widow,  or  dependent  next  of  kin,  as 
being  the  persons  entitled  under  the  succeeding  sections 
of  the  act.  Even  in  this  case,  however,  the  action 
must  be  brought  in  the  name  of  the  personal  repre- 
sentative. 

§  98.  Release  ~by  Widow  or  Next  of  Kin. 

Has  the  widow  or  dependent  next  of  kin  the  power 
to  give  a  release  of  ah1  demands,  which  will  bar  a 
recovery  under  the  above  sections  of  the  Massachu- 
setts act  ? 

Under  the  Minnesota  act,  giving  a  right  of  action 
to  the  personal  representative  of  a  person  killed  by 
negligence,  for  the  benefit  of  the  widow  and  next  of 
kin,  it  has  been  decided  that,  where  the  deceased  leaves 
no  widow,  a  release  given  by  the  next  of  kin  will  bar 
an  action  by  the  administrator.1 

Under  a  like  statute  of  Nebraska,  a  release  given  by 
the  widow  before  her  appointment  as  administratrix 
has  been  held  to  bar  her  right  to  recover  damages  for 
herself,  but  not  for  the  children,  as  next  of  kin.2 

Under  the  New  York  statute,  giving  a  right  of 
action  to  the  executor  or  administrator  for  the  benefit 
of  the  widow,  husband,  and  next  of  kin  of  one  killed 
by  the  wrongful  act,  neglect,  or  default  of  the  defend- 
ant, it  has  been  held  that  a  release  signed  by  a  brother- 
in-law  before  his  appointment  as  administrator  was  no 
bar  to  an  action  for  the  death  brought  after  his  appoint- 
ment; but  that  if  the  money  received  was  expended 

1  Sykora  v.  Case  Threshing  Machine  Co.,  58  Minn.  000  ;  s.  c.,  60  N.  W. 
Rep.  1008. 

2  Chicago  &c.  Ry.  v.  Wymore,  40  Neb.  645  ;  58  N.  W.  Rep.  1120. 


ATTRIBUTES   PECULIAR   TO   FATAL   INJURIES.     143 

for  the  expenses  of  funeral  and  burial,  the  defendant 
was  entitled  to  credit  therefor.1 

For  cases  relating  to  the  right  of  an  employee  him- 
self to  waive  the  benefit  of  the  Employers'  Liability 
Act  by  contract  or  agreement  made  before  his  injury 
is  received,  and  the  effect  of  such  a  contract  upon  his 
widow  or  next  of  kin  hi  case  he  is  killed,  see  §§6  and 
7,  ante. 

§  99.  Survival  of  Action  when  Death  is  Instantaneous 
or  without  Conscious  Suffering. 

The  second  section  of  the  Massachusetts  act  of  1887 
relates  to  the  case  of  an  employee  who  is  "  instantly 
killed  or  dies  without  conscious  suffering,"  and  reads  as 
follows :  — 

"  Section  2.  Where  an  employee  is  instantly  killed, 
or  dies  without  conscious  suffering,  as  the  result  of  the 
negligence  of  an  employer,  or  of  the  negligence  of  any 
person  for  whose  negligence  the  employer  is  liable 
under  the  provisions  of  this  act,  the  widow  of  the 
deceased,  or,  in  case  there  is  no  widow,  the  next  of  kin 
(provided  that  such  next  of  kin  were,  at  the  time  of  the 
death  of  such  employee,  dependent  upon  the  wages  of 
such  employee  for  support)  may  maintain  an  action  for 
damages  therefor,  and  may  recover  in  the  same  manner, 
to  the  same  extent,  as  if  the  death  of  the  deceased  had 
not  been  instantaneous,  or  as  if  the  deceased  had  con- 
sciously suffered." 

Damages  recovered  under  this  section  are  no  part 
of  the  assets  of  the  estate  of  the  deceased.  They  are 
not  subject  to  the  operation  of  his  will,  nor  can  they  be 

1  Stuber  v.  McEntee,  142  N.  Y.  200. 


144  EMPLOYERS'  LIABILITY  ACTS. 

taken  in  payment  for  his  debts.  They  belong  exclu- 
sively to  the  widow,  or,  if  there  is  no  widow,  to  the 
dependent  next  of  kin. 

The  American  statutes  corresponding  to  Lord  Camp- 
bell's Act  have  been  uniformly  construed  in  this  way. 
Even  when  the  statute  declares  that  the  action  shall  be 
brought  in  the  name  of  the  personal  representative  of 
the  deceased,  the  damages  constitute  no  part  of  his 
estate,  if  the  statute  declares  that  they  shall  inure  to 
the  benefit  of  the  widow  or  next  of  kin.1 

Speaking  of  similar  statutory  provisions  of  Connecti- 
cut, Mr.  Justice  Barker  says  for  the  court  in  Higgins 
v.  Central  New  England  Ry.,  155  Mass.  176,  181 : 
"  The  effect  of  such  provisions  as  to  the  distribution 
of  the  damages  is  to  say  that  they  shall  not  be  assets 
for  the  payment  of  debts,  and  shall  not  pass  by  the 
will  of  the  deceased,  but  shall  be  applied  to  the  com- 
pensation of  the  persons  who  are  presumed  to  have 
suffered  the  most  by  the  death  of  the  person  injured." 

§  100.   Where  Employee  who  has  consciously  suffered 
leaves  no  Widow  or  Dependent  Next  of  Kin. 

In  such  case  the  Massachusetts  act,  as  amended  by 
the  act  of  1892,  ch.  260,  §  1,  expressly  provides  that 
"  no  damages  for  such  death  shall  be  recovered."  The 
theory  of  the  statute  is  that  an  employee's  widow,  or 
his  dependent  next  of  kin,  has  such  an  interest  in  his 
life  as  to  render  the  employer  liable  in  damages  to 
either  the  widow  or  such  next  of  kin  for  negligence 
causing  his  death.  But  if  the  employee  leaves  neither 
a  widow  nor  dependent  next  of  kin,  then  there  is  no 

1  Stuber  v.  McEntee,  142  N.  Y.  200. 


ATTRIBUTES    PECULIAR   TO   FATAL   INJURIES.     145 

person  who  has  such  an  interest  in  his  life  as  equitably 
to  entitle  him  to  a  right  of  action  against  the  employer 
for  the  death  itself.  The  administrator,  however,  may 
maintain  an  action  for  the  conscious  suffering:  of  the 

o 

deceased.1 

Where  a  statute  of  this  kind  gives  a  right  of  action 
to  the  personal  representative  of  the  deceased  for  the 
exclusive  benefit  of  the  widow  or  next  of  kin,  no  action 
can  be  maintained  if  such  persons  do  not  exist,  even  if 
the  statute  omits  to  declare  that  no  damages  shall  be 
recoverable  in  such  case.2  The  burden  is  also  upon  the 
plaintiff  to  show  that  the  deceased  left  a  widow  or  next 
of  kin. 

Under  the  Alabama  Employers'  Liability  Act,  how- 
ever, which  provides  that  the  damages  recovered  by 
the  personal  representative  of  the  deceased  employee 
"  shall  be  distributed  according  to  the  statute  of  dis- 
tributions," it  has  been  decided  that  the  executor  or 
administrator  need  not  allege  that  the  deceased  left 
any  heirs  at  law  or  next  of  kin,  as  that  is  a  matter 
of  defence,  and,  in  the  absence  of  evidence  to  the 
contrary,  it  will  be  presumed  that  he  left  such  heirs 
or  next  of  kin.3  It  seems,  also,  that  the  executor  or 
administrator  may  recover  nominal  damages  even  when 
the  proof  shows  that  the  deceased  left  no  heirs  or 
next  of  kin.4 

1  Ante,  §  97. 

2  Commonwealth  v.  Eastern  Ry.,  5  Gray,  473  ;  Indianapolis  &c.  Ry. 
v.  Keely,  23  Ind.  133  ;  Chicago  &c.  Ry.  v.  Morris,  26  111.  400  ;  State  v. 
Gilmore,  4  Foster  (N.  H.),  461  ;  Lyons  v.  Cleveland  &c.  Ry.,  7  Ohio  St. 
336  ;  Lucas  v.  New  York  &c.  Ry.,  21  Barb.  (N.  Y.)  245. 

8  James  v.  Richmond  &c.  Ry.,  92  Ala.  231  ;  Columbus  &c.  Ry.  v. 
Bradford,  86  Ala.  574. 

4  James  v.  Richmond  &c.  Ry.,  92  Ala.  231. 


146  EMPLOYERS'  LIABILITY  ACTS. 

§  101.    What   constitutes  Instantaneous   Death,   or 
Death  without  Conscious  Suffering. 

Where  a  brakeman  is  knocked  from  the  top  of  a 
freight-car  by  a  bridge,  evidence  that  the  speed  of  the 
train  was  about  twenty  miles  an  hour,  and  the  lesions 
upon  his  head  were  sufficient  to  produce  instant  death, 
and  that  the  defendant's  workmen  who  picked  up  the 
dead  body  were  not  called  as  witnesses,  will  justify  the 
jury  in  finding  that  he  died  instantly,  or  without  con- 
scious suffering.1 

In  Hears  v.  Boston  &  Maine  Ry.,  163  Mass.  150,  the 
plaintiff's  husband,  a  car-inspector  in  the  defendant's 
employ,  was  crushed  by  a  car  while  in  the  performance 
of  his  duty.  The  testimony  tended  to  show  that  his 
body  was  crushed,  and  one  witness,  who  was  near  him 
at  the  time,  stated  that  he  was  "  stone-dead  "  when  the 
witness  reached  him,  though  the  same  witness  also  tes- 
tified that  the  deceased  took  two  or  three  steps  after  he 
was  struck  and  then  fell.  In  this  action  under  the 
statute  by  his  widow,  it  was  held  that  the  evidence 
would  warrant  a  finding  that  he  died  without  conscious 
suffering. 

Where,  however,  the  proof  leaves  to  conjecture 
whether  the  deceased  regained  consciousness  or  not, 
the  next  of  kin  cannot  recover,  as  the  burden  is  upon 
the  plaintiff  to  prove  that  he  died  instantly,  or  without 
conscious  suffering.  Thus,  in  Hodnett  v.  Boston  & 
Albany  Ry.,  156  Mass.  86,  an  employee  was  killed  by 
being  struck  on  the  back  of  the  head  by  the  end  sill 
of  a  dump-car  going  ten  or  twelve  miles  an  hour,  and 

1  Maher  v.  Boston  &  Albany  Ry.,  158  Mass.  36. 


ATTRIBUTES   PECULIAR  TO   FATAL   INJURIES.     147 

bounced  against  a  stationary  car.  The  blood  gushed 
from  his  mouth  and  nose  in  streams;  he  was  appar- 
ently unconscious  when  picked  up,  and  he  was  injured 
at  11  A.  M.  and  died  at  1  P.  M.  There  was  no  evidence 
that  from  the  nature  of  his  injuries*  he  was  unlikely 
to  regain  consciousness.  It  was  held  that  the  evidence 
was  not  sufficient  to  warrant  a  finding  that  the  em- 
ployee died  without  conscious  suffering. 

§  102.  Concurring  Causes  of  Death,  for  One  of  which 
Defendant  is  not  culpable. 

Where  the  negligent  act,  for  which  the  defendant  is 
liable  under  the  Employers'  Liability  Act,  is  a  sufficient 
cause  to  produce  death,  the  defendant  cannot  escape 
liability  by  proof  that  there  was  another  subsequent 
cause  which  was  also  sufficient  to  produce  death,  for 
which  he  was  not  responsible. 

In  Thompson  v.  Louisville  Ry.,  91  Ala.  496,  a  brake- 
man,  while  working  on  a  hand-car  under  the  charge 
or  control  of  one  McPherson,  was  injured  through  the 
negligence  of  McPherson  in  attempting  to  stop  the  car 
by  using  a  shingle.  His  attending  physicians  testified 
that  the  injury  so  received  was  mortal,  and  would  have 
produced  death  without  any  other  cause.  A  few  days 
after  this  injury,  however,  his  wife,  by  mistake,  admin- 
istered to  him  internally  several  grains  of  the  poison 
corrosive  sublimate,  which  the  physician  had  prescribed 
as  a  wash  for  his  wounds.  Other  physicians  testified 
that  the  wounds  were  not  necessarily  fatal,  but  that 
they  accelerated  his  death  from  the  effects  of  the 
poison.  The  poison  was  the  immediate  cause  of  the 
death.  It  was  held  that  a  charge  to  the  jury  to  find 


148  EMPLOYERS'  LIABILITY  ACTS. 

for  the  defendant  if'  they  believed  that  the  deceased 
died  from  the  effects  of  the  poison,  though  the  death 
was  accelerated  by  his  injuries,  was  erroneous,  for 
the  reason  that  the  defendant  could  not  shelter  itself 
under  the  plea  of  a  new  intervening  cause  when  its 
own  wrongful  act  was  the  original  and  sufficient  cause 
thereof.1 

§  103.  Claim  for  Damages  as  Ground  for  Adminis- 
tration. 

Where  the  statute  of  the  State  of  injury  and  of  pro- 
cess requires  an  action  for  the  negligent  killing  of  a 
human  being  to  be  brought  in  the  name  of  the  personal 
representative  of  the  deceased,  such  claim  for  damages 
is  sufficient  property,  estate,  or  assets  to  authorize  the 
grant  of  administration  in  the  State  of  injury,  if  the 
deceased  was  a  resident  of  that  State.  When  the  de- 
ceased was  a  non-resident  of  that  State,  there  is  some 
conflict  of  opinion  ;  but  the  better  rule  seems  to  be 
that  even  in  such  case  the  claim  for  damages  will 
authorize  the  grant  of  administration  in  the  State  of 
injury,  at  least  after  administration  has  been  obtained 
at  the  domicil  of  the  deceased. 

In  Hartford  &c.  Ry.  v.  Andrews,  36  Conn.  213,  it 
was  held  that  an  administrator  appointed  at  the  dom- 
icil of  the  deceased  (Maine)  was  entitled  as  a  matter  of 
right  to  be  appointed  ancillary  administrator  in  Con- 
necticut for  the  purpose  of  prosecuting  a  suit  for  dam- 
ages for  his  negligent  killing  in  Connecticut,  and  that 
such  claim  for  damages  was  sufficient  to  authorize  his 
appointment.  The  court  says  that  the  claim,  if  valid, 

1  See,  also,  Sauter  u.  New  York  Central  Ry.,  66  N.  Y.  50. 


ATTKIBUTES   PECULIAR   TO   FATAL   INJURIES.     149 

is  property  within  the  meaning  of  the  statute.  "  It  was 
not  the  province  of  the  court  of  probate  to  pass  upon 
the  validity  of  the  claim ;  it  was  enough  for  that  court 
to  be  satisfied  that  there  was  an  apparent  claim,  and  a 
bona  fide  intention  to  pursue  it,  and  that  administra- 
tion was  necessary  to  its  pursuit." l 

A  contrary  decision,  however,  has  been  made  in  the 
Kansas  case  of  Perry  v.  St.  Joseph  &c.  Ry.,  29  Kans. 
420.  In  that  case  a  non-resident  of  Kansas  was  killed 
in  that  State  through  the  negligence  of  the  defendant 
railroad  company.  Section  422  of  the  Kansas  Code 
gave  a  right  of  action  to  the  personal  representative 
of  the  deceased  for  the  benefit  of  the  widow  and 'chil- 
dren, if  any,  or  the  next  of  kin.  The  plaintiff  was 
appointed  administrator  in  Kansas,  upon  the  ground 
that  this  claim  for  damages  was  "  estate"  of  the  deceased 
within  the  State  of  Kansas.  In  this  action  for  damages 
it  was  held  (1)  that  the  claim  for  damages  was  not 
"  estate  "  within  the  meaning  of  the  statute  authorizing 
the  grant  of  administration  upon  the  estate  of  a  non- 
resident ;  (2)  that  the  probate  court  was  therefore  with- 
out jurisdiction  ; 2  (3)  that  its  decree  was  void,  and  could 
be  impeached  collaterally  in  this  action ;  and  that  the 
plaintiff  could  not  recover. 

The  Indiana  statute  gave  a  right  of  action  to  the 
personal  representative  of  a  person  killed  by  the  wrong- 
ful act  or  omission  of  another,  and  declared  that  the 
damages  "must  inure  to  the  exclusive  benefit  of  the 
widow  and  children,  if  any,  or  next  of  kin  "  of  the 

1  Per  Butler,  J.,  for  the  court,  p.  215. 

2  See,  also,  Mallory  v.  Burlington  &c.  Ry.,  53  Kans.  557  ;  36  Pac. 
Kep.  1059. 


150  EMPLOYERS'  LIABILITY  ACTS. 

deceased.  One  Swayne,  a  citizen  of  Pennsylvania,  was 
killed  in  a  railroad  accident  in  Indiana,  and  his  admin- 
istrator appointed  in  Indiana  brought  an  action  against 
the  railroad.  The  railroad  company  then  petitioned 
the  probate  court  to  revoke  the  letters  of  administra- 
tion. Swayne  left  no  assets  in  Indiana,  unless  this 
claim  for  damages  was  such.  On  appeal  from  the  pro- 
bate decree,  it  was  held  that  the  claim  for  damages  was 
not  assets  for  founding  administration  on  the  estate  of 
a  non-resident ;  that  the  probate  court  had  no  jurisdic- 
tion, and  that  the  letters  should  therefore  be  revoked.1 
In  the  opinion  of  the  court,  delivered  by  Mr.  Justice 
Elliott,  it  is  said  on  pages  484,  485  :  — 

"  The  right  of  action  created  by  the  statute  is  founded 
on  a  new  grievance,  namely,  causing  the  death,  and  is 
for  the  injury  sustained  thereby  by  the  widow  and  chil- 
dren or  next  of  kin  of  the  deceased,  for  the  damages 
must  inure  to  their  exclusive  benefit.  They  are  recov- 
ered in  the  name  of  the  personal  representative  of  the 
deceased,  but  do  not  become  assets  of  the  estate.  The 
relation  of  the  administrator  to  the  fund,  when  recov- 
ered, is  not  that  of  the  representative  of  the  deceased, 
but  of  a  trustee  for  the  benefit  of  the  widow  and  next 
of  kin.  The  action  is  for  their  exclusive  benefit,  and 
if  no  such  person  existed  it  could  not  be  maintained." 

§  104.  Same. 

When  the  person  killed  was  neither  injured  nor  dom- 
iciled in  the  State  granting  the  letters  of  administra- 
tion, the  authorities  are  also  conflicting.  In  Iowa  it 
has  been  held  that  a  claim  for  damages  under  the  Hli- 

1  Jeffersonville  Ry.  v.  Swayne,  26  Ind.  477. 


ATTEIBUTES   PECULIAR   TO   FATAL   INJURIES.     151 

nois  act  for  the  negligent  killing  in  Illinois  of  a  resident 
of  Illinois  would  authorize  a  probate  court  of  Iowa  to 
grant  letters  of  administration,  on  the  ground  that  an 
action  for  such  death  could  be  maintained  in  Iowa.1  It 
was  accordingly  held  that  the  Iowa  administrator  could 
maintain  an  action  in  Iowa  against  the  employer  of 
the  deceased,  the  railroad  company,  for  such  killing  in 
Illinois,  as  the  Illinois  statute  gave  a  right  of  action 
for  such  death,  and  it  was  not  contrary  to  the  public 
policy  of  Iowa.  Upon  the  main  proposition  the  court, 
by  Mr.  Justice  Rothrock,  says  on  page  728 :  — 

"  The  argument  [of  defendant]  is  based  upon  the 
claim  that  the  deceased  left  no  estate  within  this  State 
to  be  administered  upon ;  that  whatever  claim  existed 
against  the  defendant  for  damages  for  the  death  of 
Quigley  arose  under  the  law  of  Illinois,  where  the  injury 
was  received,  and  where  the  death  occurred ;  and  that 
by  the  law  of  that  State  a  right  of  action  was  not  in 
the  estate,  but  in  the  wife,  husband,  or  next  of  kin,  if 
there  were  any  surviving.  If  it  be  correct,  as  claimed 
by  appellant,  that  no  right  of  action  existed  in  this 
State,  it  is  probably  true  that  there  was  no  estate  upon 
which  to  administer.  But  if  an  action  may  be  main- 
tained in  this  State  by  an  administrator,  we  think  it 
necessarily  follows  that  the  circuit  court  had  jurisdic- 
tion to  make  the  appointment,  and  it  is  immaterial  in 
such  case  whether  the  decedent  was  a  resident  of  the 
State  of  Illinois  or  of  this  State.  The  power  to  appoint 
an  administrator  in  this  State,  for  the  sole  purpose  of 
collecting  a  claim  due  to  the  decedent,  has  been  too 
long  authorized  and  recognized  to  be  now  questioned." 

1  Morris  v.  Chicago  &c.  Ry.,  65  Iowa,  727. 


152  EMPLOYERS'  LIABILITY  ACTS. 

In  New  York,  under  its  statutes  relating  to  the 
probate  or  surrogate's  court,  letters  of  administration 
granted  by  the  surrogate  are  deemed  conclusive  evidence 
that  the  deceased  left  assets  within  the  county,  and  the 
administrator's  right  to  sue  cannot  be  defeated  by  proof 
that  the  deceased  was  injured  in  another  State  (Con- 
necticut) and  left  no  assets  in  New  York.1  The  reason- 
ing of  the  New  York  court  in  the  case  cited  is  broad 
enough  to  apply  to  the  case  of  a  non-resident  of  New 
York,  and  the  principal  case  cited  by  the  court  (Rode- 
rigas  v.  East  River  Sav.  Inst.,  63  N.  Y.  460)  was  that 
of  a  non-resident. 

The  Supreme  Court  of  Illinois  has  decided  the  con- 
trary, as  applied  to  an  Illinois  corporation,  where  the 
negligent  act  was  committed  by  such  corporation.  In 
Illinois  Central  Ry.  v.  Cragin,  71  111.  177,  a  resident 
of  Illinois  was  killed  in  Illinois  by  the  negligence  of  an 
Illinois  corporation,  for  which  the  Illinois  statute  gave 
a  right  of  action.  The  deceased  left  no  property  in 
Iowa,  unless  this  claim  for  damages  could  be  considered 

1  Leonard  v.  Columbia  Steam  Nav.  Co.,  84  N.  Y.  48. 

There  are  some  limits,  however,  to  the  doctrine  of  the  conclusiveness 
of  the  appointment  of  an  administrator.  A  fundamental  want  of  juris- 
diction may  be  shown  in  a  collateral  proceeding.  Thus  a  state  statute, 
authorizing  administration  upon  the  estate  of  a  person  who  has  been 
absent  and  unheard  of  for  seven  years,  is  contrary  to  due  process  of  law 
and  void  as  applied  to  a  living  person  ;  and  the  decree  of  appointment 
is  also  void,  and  may  be  impeached  by  him  in  a  collateral  proceeding  to 
recover  property  conveyed  by  the  administrator  to  a  bona  fide  purchaser 
for  value.  This  is  a  question  of  federal  law,  and  the  United  States 
Supreme  Court  has  jurisdiction  to  review  and  to  reverse  a  state  judg- 
ment to  the  contrary.  Scott  v.  McNeal,  154  U.  S.  34,  reversing  Scott  v. 
McNeal,  5  Wash.  St.  309,  and  virtually  overruling  Roderigas  v.  East 
River  Sav.  Inst.,  63  N.  Y.  460.  See,  also,  Lavin  v.  Emigrant  Industrial 
Sav.  Bk.,  18  Blatch.  1. 


ATTRIBUTES    PECULIAR   TO   FATAL   INJURIES.     153 

as  situated  in  Iowa.  The  plaintiff  Cragin,  however, 
obtained  letters  of  administration  in  Iowa,  and  brought 
this  suit  thereon  in  Illinois  against  the  railroad  com- 
pany. It  was  held  that  the  action  could  not  be  main- 
tained, chiefly  on  the  ground  that,  as  the  defendant  was 
a  corporation  of  Illinois,  no  cause  of  action  existed 
against  it  in  Iowa.  The  court  conceded  that  the  case 
might  be  different  as  applied  to  individuals. 

§  105.    Who  may  sue  when  Employee  dies   before 
Action  is  brought. 

The  Alabama  Employers'  Liability  Act  provides  that 
the  "  personal  representative  "  of  the  deceased  employee 
may  maintain  an  action  against  the  employer.  Under 
this  statute  it  has  been  held  that  the  executor  or  admin- 
istrator of  the  deceased  employee  is  the  only  proper 
person  to  bring  suit,1  but  that  if  the  deceased  was  a 
minor  child,  he  could  not  recover  for  the  time  of  the 
minority  of  the  deceased,  if  his  father  or  mother  was 
alive  and  was  entitled  to  receive  his  wages.2 

The  Alabama  statute,  as  originally  enacted  in  1885 
(Sess.  Acts  1884-^85,  p.  115),  provided  that  the  "  heirs 
at  law"  of  the  deceased  employee  should  have  the 
same  right  of  compensation  and  remedies  against  the 
employer,  as  if  the  workman  had  not  been  in  his  service 
nor  engaged  in  his  work.  In  Stewart  v.  Louisville  &c. 
Ry.,  83  Ala.  493,  it  was  also  held  under  this  act  that 
the  personal  representative  was  the  only  person  who 

1  Columbus  &c.  Ry.  v.  Bradford,  86  Ala.  574  ;  Lovell  v.  De  Bardelaben 
Coal  Co.,  90  Ala.  13  ;  Tennessee  Coal  Co.  v.  Herndon,  100  Ala.  451. 

2  Williams  v.  South  &  North  Alabama  Ry.,  91  Ala.  635  ;    Alabama 
Coal  Co.  v.  Pitts,  98  Ala.  285. 


154  EMPLOYERS'  LIABILITY  ACTS. 

could  maintain  an  action,  and  that  an  action  brought 
by  two  brothers  of  the  deceased,  who  were  his  next 
of  kin,  could  not  be  maintained. 

In  statutes  of  a  like  nature,  the  words  "personal 
representative  "  have  also  been  held  to  mean  the  exe- 
cutor or  administrator  of  the  person  killed  by  a  negli- 
gent act.1  When  the  statute  provides  that  the  action 
may  or  shall  be  brought  in  the  name  of  the  personal 
representative,  no  one  else  can  maintain  an  action,  not 
even  the  widow,  or  other  person  entitled  to  receive 
the  damages.2 

Under  the  Alabama  Employers'  Liability  Act,  a  father 
cannot  sue  for  an  injury  to  his  minor  son  resulting  in 
death :  the  personal  representative  is  the  only  person 
who  can  sue.  The  father  has  no  standing  in  court  to 
recover  damages  against  the  employer  under  that  stat- 
ute.3 In  delivering  the  opinion  of  the  court  in  the  case 
just  cited,  Mr.  Justice  McClellan  says,  on  page  18 : 
"  In  creating  this  new  cause  of  action,  it  was,  therefore, 
not  only  entirely  competent  for  the  legislature  to  confine 
it,  in  cases  where  the  injury  produced  death,  to  the 
personal  representative,  but,  in  doing  so,  no  existing 
right  to  sue  was  taken  away  from  the  parents.  If  the 
minor's  employment  was  against  the  will  of  the  father, 
he  could  maintain  an  action  before  the  i  Employers' 
Act,'  and  afterwards,  though  not  under  it.  If  with 
his  consent,  as  in  this  case,  he  could  sue  neither  before 
or  after,  nor  under  or  without  the  statute,  if  we  are  to 

1  McCarty  v.  New  York  &c.  Ry.,  62  Fed.  Rep.  437  ;  Perry  v.  St.  Joseph 
&c.  Ry.,  29  Kans.  420. 

2  Selma  &c.  Ry.  v.  Lacy,  49  Ga.  106  ;  Monaghan  v.  Horn,  7  Canada 
Sup.  Ct.  409  ;  Stewart  v.  Louisville  &c.  Ry.,  83  Ala.  493. 

8  Lovell  v.  De  Bardelaben  Coal  Co.,  90  Ala.  13. 


ATTRIBUTES   PECULIAR   TO   FATAL   INJURIES.     155 

give  any  force  whatever  to  section  2591,  which  desig- 
nates the  only  person  who  may  sue  under  the  act,  where 
the  injury  results  in  death,  and  particularly  and  per- 
emptorily makes  provision  for  the  disposition  of  the 
recovery,  which  can  only  be  carried  out  by  the  personal 
representative." 

§  106.  Same. 

The  Massachusetts  act  declares  that  in  certain  cases 
the  "  legal  representatives,"  and  in  other  cases  that  the 
widow  of  the  deceased,  or,  if  no  widow,  the  dependent 
next  of  kin,  may  maintain  an  action  under  the  statute 
against  the  employer.  This  question  is  explained  in 
the  preceding  sections  of  this  chapter.  The  term  "  legal 
representative  "  means  the  executor  or  administrator  of 
the  deceased  employee. 

In  England  it  has  been  decided  under  Lord  Camp- 
bell's Act  that  a  husband,  who  has  lived  apart  from  his 
wife  for  years,  cannot  recover  under  that  statute,  on 
the  ground  that  by  such  conduct  he  loses  his  right  to 
claim  the  benefit  of  the  act.1  Nor  can  a  wife  who  is 
living  in  adultery  apart  from  her  husband  recover  under 
this  statute.2 

In  the  United  States,  however,  it  has  been  held  that 
the  fact  that  husband  and  wife  separated  by  mutual 
consent,  and  each  married  another  person  before  the 
husband  was  killed  by  the  wrongful  act  of  the  defend- 
ant, does  not  prevent  the  wife  from  maintaining  an 
action  for  such  death,  under  a  statute  like  Lord  Camp- 
bell's Act.3 

1  Harrison  v.  London  &c.  By.,  Times  Law  Rep.,  vol.  i.,  p.  519. 

2  Stimpson  r.  Wood,  57  L.  J.  Q.  B.  484. 

8  Thomas  v.  East  Tennessee  &c.  Ry.,  63  Fed.  Rep.  420. 


156  EMPLOYERS'  LIABILITY  ACTS. 

In  Savannah  &c.  Ry.  v.  Smith,  93  Ga.  742 ;  s.  c.,  21 
S.  E.  Rep.  157,  it  was  held  that  the  mother  of  a  minor 
child  who  has  been  abandoned  by  her  husband,  and  has 
supported  the  child,  may  maintain  an  action  for  the 
killing  of  the  child,  by  wrongful  act,  notwithstanding 
the  father  is  alive. 

Under  the  Revised  Statutes  of  Indiana  of  1894, 
§  267,  providing  that  a  father  may  maintain  an  action 
for  the  death  of  a  child  by  the  defendant's  wrongful 
act  or  negligence,  a  man  who  marries  the  mother  of  a 
bastard  child,  and  takes  him  into  his  home  as  a  member 
of  the  family,  cannot  sue  for  the  child's  death.1 

A  child  en  ventre  sa  mere  may  recover  under  such 
statutes.2 

A  bastard  cannot  recover  under  Lord  Campbell's  Act.3 

§  107.  Former  Suit  or  Judgment  by  Wrong  Person 
No  Bar  to  Suit  by  Right  Person. 

Where  the  Employers'  Liability  Act  gives  the  right 
of  action  to  the  "  personal  representative "  of  the 
deceased  employee,  as  in  Alabama,  it  has  been  decided 
that  a  suit  by  any  one  else  is  no  bar  to  another  suit  on 
the  same  cause  of  action  by  the  executor  or  administra- 
tor of  the  deceased.4  A  like  principle  applies  also  to  a 
former  suit  brought  by  any  person  other  than  the  per- 
son specified  in  the  statute,  or  to  a  former  judgment 
rendered  in  a  suit  brought  by  such  person. 

1  Thornburgr.  American  Strawboard  Co.,  141  Ind.  000;  8.  c.,  40  N.  E. 
Rep.  1062. 

2  The  George  and  Richard,  24  L.  T.  (N.  S.)  717  ;  Nelson  v.  Galveston 
&c.  Ry.,  78  Tex.  621. 

8  Dickinson  v.  North  Eastern  Ry.,  2  H.  &  C.  735. 
4  Tennessee  Coal  Co.  v.  Herndon,  100  Ala-451. 


ATTRIBUTES   PECULIAR   TO   FATAL   INJURIES.         157 

§  108.  Domestic  Administrator's  Right  to  sue  for 
Injury  received  in  Another  State. 

In  the  federal  courts  the  rule  is  now  settled  that 
an  administrator  appointed  in  the  State  of  domicil  may 
sue  in  that  State  under  a  statute  of  another  State  in 
which  the  injury  was  received.  The  fact  that  the 
deceased  had  no  right  of  action  for  the  injury  him- 
self, or  that  the  statute  creating  the  right  gave  it  to  the 
personal  representative  for  the  benefit  of  the  widow 
and  next  of  kin,  does  not  defeat  his  right  of  recov- 
ery.1 This  is  a  question  of  general  law  or  jurispru- 
dence upon  which  the  federal  courts  are  not  bound  by 
the  law  or  practice  of  the  courts  of  the  State  in  which 
they  sit.2 

In  New  York  it  has  been  held  that  an  administrator 
appointed  in  New  York  may  sue  therein  for  an  injury 
received  in  Connecticut  without  showing  that  adminis- 
tration had  been  taken  out  in  Connecticut.3 

In  Massachusetts  a  distinction  has  been  drawn  be- 
tween actions  which  survive  and  those  which  do  not 
survive.  When  the  statute  of  the  State  of  injury  gives 
a  right  of  action  to  the  injured  person,  and  provides 
that  it  shall  survive  to  his  personal  representative  for 
the  benefit  of  his  widow,  etc.,  it  has  been  held  that  an 
administrator  appointed  in  Massachusetts,  the  place  of 
domicil,  may  maintain  an  action  there  for  an  injury 
received  in  Connecticut.4  But  when  the  statute  of  the 

1  Dennick  v.  Railroad  Co.,  103  U.  S.  11. 

2  Dennick  v.  Railroad  Co.,  103  U.  S.  11. 

8  Leonard  v.  Columbia  Nav.  Co.,  84  N.  Y.  48. 

4  Higgins  v.  Central  New  England  Ry.,  155  Mass.  176. 


158  EMPLOYERS'  LIABILITY  ACTS. 

State  of  injury  failed  to  provide  for  the  survival  of 
the  action,  it  was  held  that  a  Massachusetts  administra- 
tor could  not  maintain  an  action  in  that  State.1  This 
decision  was  placed  upon  the  ground  that  the  right  of 
a  Massachusetts  administrator  to  sue  in  that  State  was 
confined  to  causes  of  action  which  accrued  to  the  intes- 
tate during  his  lifetime,  or  which  grew  out  of  his  rights 
of  property  or  those  of  his  creditors  ;  and  that  a  specific 
power  to  sue  created  by  the  statute  of  another  State 
could  not  be  imparted  to  a  Massachusetts  administrator, 
so  as  to  give  him  the  right  to  sue  in  Massachusetts. 

In  Ohio  and  in  Kansas  it  has  also  been  decided  that  a 
domestic  administrator,  appointed  at  the  domicil  of  the 
deceased,  could  not  sue  under  a  statute  of  another  State 
in  which  the  injury  was  received.2 

It  has  also  been  held  in  Massachusetts  and  in  Kansas 
that  the  fact  that  the  statute  of  the  State  of  process 
provides  that  the  right  of  action  shall  survive  to  the 
personal  representative  does  not  enable  the  domestic 
administrator  to  sue  for  an  injury  received  in  another 
State.3 

§  109.  Foreign  Administrator's  Right  to  sue. 

The  general  rule  is  well  settled,  both  in  the  state 
and  federal  courts,  that,  in  the  absence  of  an  enabling 
statute,  an  executor  or  administrator  appointed  in  one 
State  cannot  sue  in  another  State  in  his  representative 

1  Richardson  v.  New  York  Central  Ry.,  98  Mass.  85  ;  Davis  v.  New 
York  &c.  Ry.,  143  Mass.  301. 

2  Woodard  v.  Michigan  Southern  Ry.,  10  Ohio  St.  121  ;  McCarthy  v. 
Chicago  &c.  Ry.,  18  Kans.  46. 

8  Davis  v.  New  York  &c.  Ry.,  143  Mass.  301  ;  McCarthy  v.  Chicago 
&c.  Ry.,  18  Kans.  46. 


ATTRIBUTES   PECULIAR   TO   FATAL   INJURIES.        159 

capacity.  Unless  the  laws  of  the  State  of  process  allow 
a  foreign  administrator  to  prosecute  a  suit  therein,  he 
must  take  out  ancillary  administration  before  he  can 
do  so.1 

Many  States,  however,  have  passed  such  enabling 
statutes.  Thus,  in  Indiana,  the  statute  provides  that 
a  foreign  administrator  may  sue  "  in  like  manner  and 
under  like  restrictions  as  a  resident  administrator ;  " 
and  it  has  been  held  that  an  administrator  appointed  in 
another  State  may  sue  in  Indiana,  for  an  injury  there 
received  resulting  in  death,  under  the  Indiana  statutes 
giving  a  right  of  action  therefor.2  So,  under  the 
Georgia  enabling  act,  it  has  been  decided  that  an 
executor  or  administrator  appointed  in  South  Carolina 
may  sue  in  Georgia,  upon  complying  with  certain  con- 
ditions prescribed  by  the  Code,  for  a  death  caused  by 
negligence  in  South  Carolina.3 

Where  the  statute  of  a  State  in  which  an  injury 
resulting  in  death  is  received  gives  a  right  of  action 
to  the  personal  representative  of  the  deceased  for  the 
exclusive  benefit  of  the  widow  and  next  of  kin,  an 
administrator  appointed  in  that  State  may  sue  in 
another  State  without  taking  out  ancillary  letters ;  be- 
cause the  amount  recoverable  is  no  part  of  the  assets 
of  the  estate,  but  belongs  to  the  widow  and  next  of 
kin.4  The  relation  of  the  administrator  to  the  damages, 
when  recovered,  is  not  that  of  the  representative  of  the 

1  Noonan  v.  Bradley,  9  Wall.  394  ;  Lawrence  v.  Nelson,  143  U.  S.  215  ; 
Langdon  v.  Potter,  11  Mass.  313  ;  Chapman  v.  Fish,  6  Hill  (N.  Y.),  554  ; 
Bell  v.  Nichols,  38  Ala.  678  ;  Oilman  v.  Oilman,  54  Me.  453. 

2  Jeffersonville  &c.  Ry.  v.  Hendricks,  41  Ind.  48. 
»  South  Carolina  Ry.  v.  Nix,  68  Ga.  572. 

*  McCarty  v.  New  York  &c.  Ry.,  62  Fed.  Rep.  437. 


160  EMPLOYERS'  LIABILITY  ACTS. 

deceased,  but  that  of  an  agent  or  trustee  for  the  benefit 
of  the  widow  and  next  of  kin.1 

In  Kansas  Pacific  Ry.  v.  Cutter,  16  Kans.  568,  a 
similar  decision  was  placed  partly  on  the  ground  that 
the  term  "  personal  representative  "  included  a  foreign 
administrator,  and  partly  on  the  ground  that  the  dam- 
ages recovered  were  not  assets  of  the  estate  for  the 

O 

payment  of   debts,   but   belonged   exclusively   to   the 
widow  and  children,  if  any,  or  next  of  kin.2 

In  Limekiller  v.  Hannibal  &c.  Ry.,  33  Kans.  83, 
a  resident  of  Missouri  was  killed  in  Kansas.  The 
plaintiff  was  appointed  administratrix  in  Missouri,  and 
brought  this  action  under  §  422  of  the  Kansas  Civil 
Code,  which  gave  a  right  of  action  to  the  personal 
representative  of  a  person  killed  by  the  wrongful  act 
or  omission  of  another,  —  the  damages  to  inure  to  the 
exclusive  benefit  of  the  widow  and  children,  if  any,  or 
next  of  kin.  In  Missouri  the  personal  representative 
had  no  power  to  institute  such  an  action,  but  the  hus- 
band or  wife  of  the  deceased  had  such  power.  It  was 
held  that  the  plaintiff  could  not  maintain  the  action,  for 
the  reason  that  her  powers  or  rights  in  Kansas  could  be 
no  greater  than  they  were  in  Missouri,  the  place  of  her 
appointment. 

§  110.  Same.     Author's  View. 
The  true  view  seems  to  be  to  regard  an  administrator, 
appointed  in  a  State  having  such  a  statute,  as  a  statutory 

1  Jeffersonville  &c.  Ry.  v.  Swayne,  26  Ind.  477,  484,  485  ;  Perry  v.  St. 
Joseph  &c.  Ry.,  29  Kans.  420,  422,  423  ;  Wooden  v.  Western  New  York 
&c.  Ry.,  126  N.  Y.  10, 15. 

2  See,  also,  Jeffersonville  &c.  Ry.  v.  Hendricks,  41  Ind.  48,  72. 


ATTRIBUTES   PECULIAR   TO   FATAL   INJURIES.        161 

trustee  for  the  benefit  of  the  widow  or  next  of  kin, 
and  entitled  to  sue  as  such  in  another  State  without 
ancillary  administration  therein.  He  does  not  sue  for 
the  benefit  of  the  estate,  but  for  the  benefit  of  the 
widow  or  next  of  kin.  The  same  statute  which  creates 
the  right  of  action  designates  the  personal  representa- 
tive of  the  deceased  as  the  proper  person  to  bring  the 
suit.  The  fact  that  he  describes  himself  as  executor 
or  administrator  of  the  deceased  does  not  change  the 
essential  nature  of  the  action :  it  is  stiU  an  action  for 
the  benefit  of  the  widow  or  next  of  kin,  and  he  is 
merely  the  agent  or  trustee  appointed  to  prosecute  it, 
and  to  pay  over  the  proceeds,  if  any,  not  to  the  creditors 
or  legatees  of  the  deceased,  but  to  the  widow  or  next 
of  kin.  His  right  or  title  to  the  proceeds  is  not  derived 
from  the  deceased,  but  from  the  statute. 

The  case  seems  to  be  analogous  to  that  of  a  person 
appointed,  under  a  statute  of  the  State  creating  a  cor- 
poration, to  hold  the  property  of  the  corporation,  after 
its  dissolution,  for  the  benefit  of  its  creditors  and  stock- 
holders and  others  interested  in  the  assets.  It  has  been 
held  that  such  a  statutory  trustee  or  receiver  may  sue 
and  be  sued  in  the  courts  of  another  State  without  an 
appointment  from  the  latter  State,  on  the  ground  that 
a  corporation  is  the  creature  of  legislation,  and  may  be 
endowed  with  such  powers  as  its  creator  sees  fit  to  give, 
and  that  such  person  is  the  legal  representative  of  the 
corporation,  and  therefore  entitled  to  recognition  as 
such  in  other  States,  or  in  the  federal  courts  sitting  in 
other  States.1 

1  Relfe  v.  Rundle,  103  U.  S.  222  ;  Parsons  v.  Charter  Oak  Ins.  Co.,  31 
Fed.  Rep.  305  ;  Bockover  v.  Life  Asso.,  77  Va.  85.     See,  also,  §  199,  post. 


162  EMPLOYERS'  LIABILITY  ACTS. 

This  view  receives  support  from  the  cases  holding 
that  a  foreign  administrator  may  sue  when  his  suit  is 
not  brought  in  his  representative  capacity,  but  in  his 
personal  or  some  other  capacity ;  as,  payee  of  a  note 
given  in  payment  of  property  belonging  to  the  estate,1 
or  when  he  has  reduced  a  debt  due  to  the  estate  to 
judgment  in  the  State  of  appointment.2 

§  111.  Who  are  "Dependent "  upon  the  Employee. 
In  Daly  v.  New  Jersey  Steel  Co.,  155  Mass.  1,  it 
was  held  that  an  invalid  sister  of  the  employee,  who  was 
unable  to  work  regularly  or  to  earn  sufficient  to  pay  her 
doctor's  bills,  and  who  received  from  her  brother  thirty 
to  thirty-five  dollars  a  month  on  an  average  for  three  or 
four  years,  was  dependent  upon  him  for  support  within 
the  meaning  of  the  statute.  This  decision  was  placed 
upon  the  ground  that  it  was  not  necessary  that  the  per- 
son claiming  as  a  dependent  should  be  dependent  in 
the  sense  that  the  employee  was  legally  bound,  if  able, 
to  support  the  claimant  (Mass.  Pub.  Sts.  ch.  84,  §  6). 
The  fact  of  dependence  was  held  to  be  sufficient  to 
bring  the  claimant  within  the  benefit  of  the  statute.3 

Under  statutes  giving  a  right  of  action  for  the 
benefit  of  the  widow  and  next  of  kin  of  the  deceased, 
the  damages  to  be  awarded  "  with  reference  to  the 
pecuniary  injuries  resulting  from  such  death  to  the 
widow  and  next  of  kin,"  it  has  also  been  held  that 

*  McCord  v.  Thompson,  92  Ind.  565. 

2  Talmage  v.  Chapel,  16  Mass.  71  ;  Biddle  v.  Wilkins,  1  Peters,  686 ; 
Barton  v.  Higgins,  41  Md.  539  ;  Lewis  v.  Adams,  70  Cal.  403  ;  Cherry  v. 
Speight,  28  Tex.  503.  For  other  illustrations,  see  Doe  v.  M'Farlaud,  9 
Cranch,  151  ;  De  Forest  v.  Thompson,  40  Fed.  Rep.  375. 

8  See,  also,  Houlihan  v.  Connecticut  River  Ry.,  164  Mass.  555. 


ATTRIBUTES   PECULIAR  TO   FATAL   INJURIES.      163 

a  recovery  may  be  had  without  proof  that  the  bene- 
ficiary had  a  legal  claim  upon  the  deceased  for  sup- 
port. To  hold  the  contrary  "  would  be  an  interpolation 
in  the  statute  changing  the  fair  import  of  its  terms, 
and  hence  not  warranted."  1 

In  Hodnett  v.  Boston  &  Albany  Ry.,  156  Mass.  86, 
the  claimant  was  the  employee's  half-sister.  Her  testi- 
mony was  that  he  used  to  come  in  and  see  her,  and 
sometimes  gave  her  money ;  that  he  sent  her  money 
every  other  week  or  so  to  pay  her  rent ;  and  that  she 
had  no  means  of  support  for  herself  and  her  two  chil- 
dren but  her  earnings,  and  since  his  death  she  had  had 
to  support  herself.  There  was  no  evidence  to  show 
what  her  earnings  or  living  expenses  were.  It  was  held 
that  such  evidence  would  not  warrant  a  jury  in  finding 
that  the  claimant  was  dependent  upon  the  wages  of 
the  employee  for  support,  and  that  she  could  not 
recover  under  the  act.2 

§  112.  Action  by  Dependent  in  Massachusetts. 
Where  the  employee's  death  is  instantaneous,  the 
action  should  be  brought  in  the  name  of  the  next  of 
kin  who  is  dependent  upon  the  wages  of  such  employee 
for  support.  If  there  are  two  next  of  kin,  and  only 
one  of  them  is  dependent,  the  action  should  be  brought 
in  his  or  her  name  alone,  without  joining  the  other.3 

1  Railroad  Co.  v.  Barron,  5  Wall.  90,  106  ;  Chicago  v.  Major,  18  111. 
349  ;  Pennsylvania  Ry.  v.  McCloskey,  23  Pa.  St.  526. 

2  As  to  who  are  or  are  not  "  dependent,"  see,  further,  McCarthy  v, 
New  England  Order  of  Protection,  153  Mass.  314  ;  American  Legion  of 
Honor  v.  Perry,  140  Mass.  580. 

8  Daly  v.  New  Jersey  Steel  Co.,  155  Mass.  1. 


CHAPTER 


CONTRIBUTORY  NEGLIGENCE. 


Section 

113.  Contributory  negligence  is   a 

defence. 

114.  Exposure  to  sudden  and  im- 

minent danger. 

115.  Defendant's    responsible    em- 

ployees must  use  reasonable 
care  to  avoid  injury  to  the 
plaintiff  when  they  know  he 
is  in  a  dangerous  position. 

116.  Employee's  right  to  rely  upon 

warning  from  person. 


Section 

117.  Same. 

118.  Warning  from  object. 

119.  Inference  of  due  care. 

120.  Selecting  dangerous  mode  of 

performing  work  when  safe 
way  exists. 

121.  Same. 

122.  Other  illustrations  of  due  care 

and  contributory  negligence. 


§  113.   Contributory  Negligence  is  a  Defence. 

IT  is  well  settled  in  the  United  States,  and  also  in 
England,  that  the  various  Employers'  Liability  Acts 
have  not  abolished  the  defence  of  contributory  neg- 
ligence. If  the  injured  employee  is  guilty  of  such 
negligence,  he  cannot  recover  under  the  act.1  The 
Massachusetts  and  Colorado  statutes  confer  the  right 
of  action  in  terms  only  upon  an  employee  "who  is 
himself  in  the  exercise  of  due  care  and  diligence  at 
the  time,"  while  the  English  and  Alabama  statutes  are 
silent  upon  the  subject. 

In  Wilson  v.  Louisville  &c.   Ry.,  85  Ala.  269,  a 

1  Geyette  v.  Fitchburg  Ry.,  162  Mass.  549  ;  Brown  v.  New  York  &c. 
Ry.,  158  Mass.  247  ;  Mobile  &c.  Ry.  v.  Holborn,  84  Ala.  133  ;  Columbus 
&c.  Ry.  v.  Bradford,  86  Ala.  574  ;  Richmond  &c.  Ry.  v.  Thomasou,  99 
Ala.  471  ;  Weblin  v.  Ballard,  17  Q.  B.  D.  122. 


CONTRIBUTORY   NEGLIGENCE.  165 

freight  brakeman,  while  descending  from  the  top  of 
the  caboose  by  a  side  ladder,  was  struck  by  the  supply- 
pipe  of  a  water-tank  near  the  track  and  injured.  The 
tank  was  so  near  the  track  as  not  to  leave  sufficient 
space  between  the  pipe  and  a  train  of  cars  for  the  body 
of  a  person.  The  plaintiff  had  been  in  the  employ  of 
the  defendant  road  for  two  or  three  months,  and  was 
acquainted  with  the  location  and  the  surroundings  of 
the  tank.  The  accident  occurred  at  three  o'clock  in 
the  morning,  and  the  plaintiff  did  not  have  his  lantern 
with  him.  He  was  not  descending  to  discharge  a  duty 
required  by  the  nature  of  his  employment,  but  merely 
for  the  purpose  of  eating  his  lunch.  In  an  action 
under  the  Alabama  statute,  it  was  held  that  the  plain- 
tiff was  guilty  of  contributory  negligence  and  could 
not  recover. 

In  Columbus  &c.  Ry.  v.  Bridges,  86  Ala.  448,  an 
engineer  of  a  construction  train,  who  was  also  acting 
as  conductor,  was  killed  by  the  falling  of  a  bridge  while 
attempting  to  take  his  train  across  a  river  during  a 
great  flood.  The  evidence  tended  to  show  that  the 
watchman  at  the  bridge  gave  the  safety  signal,  and  the 
plaintiff  contended  that  the  defendant  was  liable  for 
his  act  as  being  a  person  in  "  charge  or  control  of  any 
signal,  points,  ...  or  of  any  part  of  the  track  of  a  rail- 
way." It  appeared  that  in  the  morning  of  the  same 
day,  while  the  water  was  rapidly  rising,  the  deceased 
had  himself  examined  the  bridge,  and  that  in  crossing 
the  bridge  he  was  not  acting  under  the  orders  of  any 
superior  officer.  It  was  held  that  the  deceased  was 
guilty  of  contributory  negligence,  and  that  the  defend- 
ant was  not  liable  under  the  act. 


EMPLOYERS     LIABILITY   ACTS. 


§  114.  Exposure  to  Sudden  and  Imminent  Danger. 

An  employee  who  is  injured  by  the  negligence  of 
any  one  for  whose  negligence  the  employer  is  liable 
under  the  Employers'  Liability  Act,  through  an  expos- 
ure to  a  sudden  and  imminent  danger  caused  by  the 
negligent  act  of  such  person,  is  not  required  to  act 
with  the  same  coolness  and  judgment  as  if  the  danger 
were  not  sudden  and  unexpected.  He  will  not  be  guilty 
of  contributory  negligence  if  he  exercises  the  prudence 
of  an  ordinary  or  reasonable  person  under  like  circum- 
stances.1 

In  Richmond  &c.  Ry.  v.  Farmer,  97  Ala.  141,  a 
section  foreman  in  the  employ  of  the  defendant  rail- 
road was  injured  by  a  locomotive  engine  while  he  was 
engaged  in  repairing  a  broken  frog  on  a  trestle.  The 
trestle  was  about  sixty  feet  long  and  from  four  to  six 
feet  high.  Two  engines  were  standing  at  opposite  ends 
of  the  trestle,  ready  to  cross  as  soon  as  the  frog  was 
repaired.  The  plaintiff  notified  one  of  the  engineers 
to  cross  over  slowly,  so  that  he  could  watch  the  frog 
and  switch  and  see  how  it  worked,  and  he  told  the 
other  engineer  not  to  cross  until  he  signalled  to  him. 
While  the  plaintiff  was  stooping  down  watching  the 
frog,  very  shortly  after  the  first  engine  had  passed  and 
before  he  had  signalled  for  the  second  engine,  the  lat- 
ter started  to  cross,  and  the  plaintiff  knew  nothing  of 
its  approach  until  it  was  close  upon  him,  when  some  one 
hallooed  to  him.  In  an  action  under  the  Employers' 
Liability  Act  for  the  negligence  of  the  engineer  in 
charge  of  the  second  engine,  it  was  held  that  a  charge 

1  Richmond  &c.  Ry.  v.  Farmer,  97  Ala.  141. 


CONTRIBUTORY  NEGLIGENCE.         167 

in  the  following  language  was  correct :  "  A  man  under 
sudden  excitement  or  peril  is  only  required  to  exercise 
such  care  for  his  own  safety  as  an  ordinary,  prudent 
man  would  have  exercised  under  like  circumstances, 
and,  if  he  exercised  such  degree  of  care,  then  in  that 
he  is  not  guilty  of  contributory  negligence." 

§  115.  Defendant's  Responsible  Employees  must  use 
Reasonable  Care  to  avoid  Injury  to  the  Plaintiff 
when  they  know  he  is  in  a  Dangerous  Position. 

In  Alabama  the  common-law  rule  of  some  jurisdic- 
tions, that  contributory  negligence  of  the  plaintiff  will 
not  prevent  a  recovery  if  the  defendant,  knowing  the 
plaintiff's  dangerous  position  and  negligence,  fails  to 
use  reasonable  care  to  avoid  the  injury,1  has  also  been 
applied  to  actions  under  the  Employers'  Liability  Act. 
Of  course  this  rule  does  not  render  the  common  em- 
ployer liable  for  the  negligence  of  an  ordinary  co-em- 
ployee, but  merely  for  that  of  a  responsible  employee, 
such  as  a  superintendent,  or,  in  the  case  of  a  railroad,  a 
person  having  the  charge  or  control. 

In  Hissong  v.  Richmond  &c.  Ry.,  91  Ala.  514,  a 
switchman  was  injured  while  attempting  to  couple  two 
railroad  cars.  The  plaintiff  testified  that  he  first  at- 
tempted to  couple  the  cars  with  a  stick,  as  required  by 

1  Inland  Coasting  Co.  v.  Tolson,  139  U.  S.  551 ;  Lucas  v.  New  Bed- 
ford &c.  Ry.,  6  Gray,  64,  72  ;  Radley  v.  London  &c.  Ry.,  1  App.  Cas.  754  ; 
Tanner  v.  Louisville  &e.  Ry.,  60  Ala.  621  ;  Cook  P.  Central  Ry.,  67  Ala. 
533 ;  Louisville  &c.  Ry.  v.  Watson,  90  Ala.  68  ;  Romick  v.  Chicago  &c. 
Ry.,  62  Iowa,  167  ;  8.  c.,  15  Am.  &  Eng.  R.  R.  Cases,  288  ;  Denver  Rapid 
Transit  Co.  v.  Dwyer,  20  Colo.  132,  36  Pac.  Rep.  1106  ;  Kansas  Pacific 
Ry.  v.  Craumer,  4  Colo.  524 ;  Austin  v.  New  Jersey  Steamboat  Co.,  43 
N.  Y.  75,  82. 


168  EMPLOYERS'  LIABILITY  ACTS. 

the  rules  of  the  company,  but  could  not  do  so  because 
the  draw-heads  of  the  cars  were  not  of  the  same  height ; 
that  he  then  signalled  the  engineer  to  stop  the  train, 
and  when  it  had  stopped  he  went  in  between  the  cars 
to  make  the  coupling  by  hand ;  that  when  he  had  been 
working  on  the  pin  thirty  or  forty  seconds,  and  before 
he  had  made  the  coupling,  the  engineer  moved  the  car 
backwards  upon  him  and  thereby  caused  his  injuries. 
It  was  held,  in  an  action  under  the  Employers'  Liability 
Act  for  the  negligence  of  the  engineer,  as  being  a  per- 
son in  the  charge  or  control  of  an  engine,  car,  or  train 
upon  a  railroad,  that,  although  the  plaintiff  was  guilty 
of  negligence,  the  plaintiff  was  entitled  to  recover, 
because  the  engineer,  with  knowledge  of  the  plaintiff's 
perilous  position  and  negligence,  failed  to  use  ordinary 
care  to  avoid  the  injury.1 

In  Louisville  &c.  Ry.  v.  Markee,  103  Ala.  000,  15 
So.  Rep.  511,  a  section  foreman  riding  on  a  hand-car 
was  killed  by  a  collision  with  a  train  moving  in  the 
same  direction  at  its  usual  rate  of  speed.  The  hand- 
car had  just  emerged  from  a  cut  in  the  rocks  where  the 
locomotive  engineer  could  not  see  the  hand-car  until 
within  one  hundred  and  fifty  yards  of  it,  on  account  of 
a  curve  in  the  track.  As  soon  as  the  engineer  saw  the 
hand-car  he  put  on  the  brakes  and  reversed  the  engine, 
and  he  testified  that  in  his  opinion  this  was  the  most 
effective  way  to  stop  a  train.  The  conductor,  however, 
testified  that  in  his  opinion  the  best  way  was  to  reverse 
the  engine  first  and  then  apply  the  brakes.  In  an 

1  See,  also,  Louisville  &c.  Ry.  v.  Trammell,  93  Ala.  350  ;  Alabama  &c. 
Ry.  v.  Richie,  99  Ala.  346  ;  Louisville  &c.  Ry.  v.  Watson,  90  Ala.  68 ; 
Louisville  &c.  Ry.  v.  Hurt,  101  Ala.  34  ;  13  So.  Rep.  130. 


CONTRIBUTORY   NEGLIGENCE.  169 

action  under  the  Employers'  Liability  Act,  where  the 
deceased  had  been  guilty  of  contributory  negligence  in 
failing  to  flag  the  curve  in  the  track,  it  was  held  that 
whether  the  conductor  or  the  engineer  was  correct  in 
his  view,  if  the  engineer  adopted  the  means  which  he 
believed  best  adapted  for  stopping  the  train,  and  in 
good  faith  did  all  he  could  to  prevent  the  collision,  he 
was  not  guilty  of  such  wanton  or  reckless  negligence  as 
to  purge  the  contributory  negligence  of  the  deceased, 
and  that  the  defendant  was  not  liable.1 

The  fact  that  a  railroad  company  maintains  an  over- 
head bridge  which  is  only  five  feet  and  two  inches 
above  the  tops  of  freight-cars,  although  it  could  be 
raised  at  small  expense,  does  not  constitute  wilful  or 
wanton  negligence  on  its  part  which  will  render  it 
liable  under  the  statute  to  a  brakeman  who  has  been 
injured  while  guilty  of  contributory  negligence.2 

§  116.  Employee's  Right  to  rely  upon  Warning  from 

Person. 

The  surrounding  facts  and  circumstances  of  the  work 
may  be  such  as  to  excuse  an  employee  from  using  his 
eyes  or  ears  to  protect  himself  from  danger,  and  to  give 
him  the  right  to  rely  upon  a  warning  from  some  one 
else.3  What  are  such  facts  and  circumstances  is  some- 
times a  difficult  question  to  decide.  A  few  illustrations 
on  both  sides  of  the  line  will  be  given. 

1  See,  also,  Chambliss  v.  Mary  Lee  Coal  Co.  103  Ala.  000 ;  16  So.  Rep. 
572. 

2  Louisville  &c.  Ry.  v.  Banks,  103  Ala.  000  ;  16  So.  Rep.  547. 

8  Schultz  v.  Chicago  &c.  Ry.,  44  Wis.  638  ;  Ditberner  v.  Chicago  &c. 
Ry.,  47  Wis.  138  ;  Maguire  v.  Fitchburg  Ry.,  146  Mass.  379. 


170  EMPLOYERS'  LIABILITY  ACTS, 

In  Davis  v.  New  York  &c.  Ry.,  159  Mass.  532,  the 
plaintiff,  while  repairing  the  defendant's  track,  was  run 
down  by  a  train.  His  work  required  him  to  face  to 
the  north  and  to  bend  over  the  track,  so  that  he  could 
not  see  trains  approaching  from  the  south.  It  was  the 
duty  of  his  section  boss  or  foreman  of  the  gang  to 
warn  him  of  the  approach  of  such  trains.  At  the  trial 
the  evidence  was  conflicting  as  to  .whether  this  warning 
was  given.  It  was  held  that  the  plaintiff  was  entitled 
to  rely  upon  this  warning,  and  that  his  doing  so  did 
not  constitute  contributory  negligence.  The  court,  by 
Holmes,  J.,  says :  "  The  defendant  had  put  the  plaintiff 
in  a  position  in  which  the  more  closely  he  attended  to 
his  duty  the  less  he  was  able  to  be  on  the  watch,  and 
had  put  a  foreman  there  for  the  express  purpose  of 
warning  him.  Under  such  circumstances  the  jury  well 
might  say  that  the  plaintiff  was  justified  in  relying  on 
the  foreman's  doing  what  the  defendant  admitted  that 
he  was  bound  to  do,  and  said  that  he  did.  A  man 
alongside  another  in  this  way  can  make  sure  of  his 
warning  being  understood.  The  case  is  not  like  one 
where  the  only  warning  relied  on  must  come  from  the 
train."  Page  535.  As  the  failure  to  give  the  warn- 
ing was  the  negligence  of  the  defendant's  superintend- 
ent, it  was  further  held  that  the  plaintiff  was  entitled 
to  recover  under  the  Massachusetts  statute.1 

In  Lynch  v.  Boston  &  Albany  Ry.,  159  Mass.  536, 
the  plaintiff's  intestate  was  killed  by  a  shunted  car  while 
engaged  in  cleaning  under  a  switch-bar  in  the  defend- 
ant's yard.  The  work  could  only  be  done  in  a  stooping 

1  See,  also,  Lynch  v.  Allyn,  160  Mass.  248  ;  Burgess  v.  Davis  Sulphur 
Ore  Co.,  165  Mass.  71;  42  N.  E.  Rep.  501. 


CONTRIBUTORY  NEGLIGENCE.         171 

position,  which  naturally  withdrew  his  attention  from 
approaching  trains  or  cars.  The  plaintiff  contended 
that  the  deceased  was  excused  from  using  his  eyes  for 
his  own  protection,  upon  the  ground  that  the  defendant 
had  given  him  the  right  to  rely  upon  being  warned  of 
the  approach  of  a  car  or  train.  The  strongest  evidence 
of  this  was  the  statement  of  the  section  foreman  that 
he  generally  looked  out  for  the  men  the  best  he  could, 
and  warned  them,  but  that  the  men  had  to  look  out  for 
themselves  when  they  were  in  different  parts  of  the 
yard,  and  that  at  the  time  of  the  accident  the  men  were 
separated.  The  presiding  judge  ordered  a  verdict  for 
the  defendant,  and  the  full  court  held  that  this  ruling 
was  correct,  for  the  reason  that  the  deceased  in  failing 
to  use  his  eyes  was  guilty  of  negligence,  and  that  he 
had  no  right  to  rely  upon  being  warned  either  by  the 
section  foreman  or  by  a  person  on  the  approaching  car.. 
The  case  was  stated  by  the  court  on  page  538  to  be 
"  not  so  strong  for  the  plaintiff  as  if  the  deceased  had 
been  run  down  by  an  engine,  which  ordinarily  would 
have  a  man  on  the  lookout."  l  Maguire  v.  Fitchburg 
Railroad,  146  Mass.  379,  was  distinguished  on  the 
ground  that  in  that  case  "  there  was  an  implied  assur- 
ance that  the  use  of  the  track  was  suspended."  Page 
537,  by  Holmes,  J. 

§  117.  Same. 

In  Donahoe  v.  Old  Colony  Ry.,  153  Mass.  356,  the 
plaintiff  was  jammed  between   an  engine  and   a  car, 

1  Citing  Shea  v.  Boston  &  Maine  Ry.,  154  Mass.  31  ;  Aerkfetz  v.  Hum- 
phreys, 145  U.  S.  418,  420.  See,  also,  Railway  Co.  v.  Murphy,  50  Ohio 
St.  135. 


172  EMPLOYEES'  LIABILITY  ACTS. 

while  he  was  attempting  to  uncouple  the  car,  by  reason 
of  a  broken  draw-bar.  The  plaintiff  was  a  brakeman, 
and  during  a  temporary  absence  from  his  post  the  con- 
ductor chained  to  the  engine  a  car  with  a  broken  draw- 
bar, and  omitted  to  inform  the  plaintiff  of  the  fact. 
He  was  ignorant  of  this  danger,  and  in  the  course  of 
his  duty  he  stepped  into  the  freight-car  chained  to  the 
engine,  and,  without  looking  down  to  see,  with  the  aid 
of  his  lantern,  whether  the  draw-bar  was  all  right,  he 
called  to  the  engineer  to  back  the  engine  so  that  he 
could  pull  out  the  coupling-pin  easily.  The  engine  was 
backed  quickly,  and  by  reason  of  the  broken  draw-bar 
the  tender  came  in  close  contact  with  the  forward  end 
of  the  car  upon  which  the  plaintiff  stood,  and  crushed 
his  leg.  It  was  held  that  the  jury  was  justified  in 
finding  that  the  proximate  cause  of  the  injury  was  the 
conductor's  omission  to  inform  the  plaintiff  of  the 
broken  draw-bar,  and  that  the  plaintiff  was  in  the  exer- 
cise of  due  care  and  diligence.  The  conductor  having 
been  in  charge  of  the  train,  it  was  further  held  that 
the  common  employer  was  liable  in  damages  under  the 
statute  for  the  injury. 

In  Steffe  v.  Old  Colony  Ry.,  156  Mass.  262,  a  car- 
inspector,  while  inspecting  a  moving  train,  was  struck 
by  another  moving  train.  The  evidence  tended  to  show 
that  it  was  customary  to  inspect  moving  trains ;  that  the 
other  train  came  upon  the  plaintiff  unexpectedly  and 
rapidly,  without  any  warning  from  the  brakeman  on 
the  approaching  train,  who  was  stationed  there  to  give 
warning  or  to  stop  the  train.  It  was  held  that  the  jury 
was  warranted  in  finding  that  the  plaintiff  was  in  the 
exercise  of  due  care  and  diligence,  under  the  terms  of 


CONTRIBUTORY  NEGLIGENCE.         173 

the  statute.  The  circumstances  were  such  as  to  entitle 
the  plaintiff  to  rely  upon  a  warning  from  the  brakeman 
who  was  in  charge  or  control  of  the  train.1  The  fail- 
ure to  give  this  warning  was  the  negligence  of  a  person 
for  whose  acts  the  railroad  company  was  liable.  Hence 
the  plaintiff  was  entitled  to  recover  damages. 

It  is  not  essential,  however,  that  the  warning  should 
be  given  by  a  superintendent,  or  other  person  in  charge 
or  control  of  the  injured  employee.  If  it  is  duly  given 
by  a  co-employee,  it  is  sufficient  to  exonerate  the  com- 
mon employer  in  an  action  under  the  act.2 

§  118.    Warning  from  Object. 

The  warning  upon  which  an  employee  is  entitled  to 
rely  may  come  from  a  part  of  the  defendant's  ways, 
works,  or  machinery,  as  well  as  from  a  person.  Thus, 
in  Maher  v.  Boston  &  Albany  Ry.,  158  Mass.  36,  a 
freight  brakeman  was  instantly  killed  by  reason  of  his 
head  coming  in  contact  with  a  bridge,  the  approach 
to  which  was  guarded  by  a  tell-tale  which  was  out  of 
order.  His  duty  required  him  to  ride  on  the  top  of 
the  rear  end  of  the  train,  where  there  was  a  tah1  re- 
frigerator car,  and  to  watch  the  rear  end  of  the  train 
with  his  face  to  the  rear.  He  knew  that  there  were 
low  bridges  under  which  the  car  must  pass.  In  an 
action  under  the  Employers'  Liability  Act,  the  defend- 
ant contended  that  the  deceased  was  not  in  the  exercise 
of  due  care  in  failing  to  keep  a  lookout  for  the  bridge. 
But  the  court  held  that  the  circumstances  justified  him 
in  relying  upon  the  tell-tale  for  warning  of  his  approach 

1  Davis  v.  New  York  &c.  Ry.,  159  Mass.  532. 

2  Alabama  Coal  Co.  v.  Pitts,  98  Ala.  285. 


174  EMPLOYERS'  LIABILITY  ACTS. 

to  the  bridge,  and  that  the  jury  was  warranted  in  find- 
ing: that  he  was  in  the  exercise  of  due  care  and  dili- 

o 

gence.  As  the  tell-tale  was  out  of  order  and  did  not 
give  the  warning,  a  verdict  for  the  plaintiff  was  sus- 
tained. 

Where,  however,  the  brakeman's  duty  does  not  re- 
quire him  to  sit  in  a  dangerous  place,  and  he  assumes 
such  position  merely  for  his  own  comfort  or  conven- 
ience, and  he  is  familiar  with  the  route  and  the  loca- 
tion of  the  bridges,  the  fact  of  a  defect  in  the  bridge, 
and  the  absence  of  "  whip  -  straps  "  or  other  warning 
signal  near  the  bridge  which  knocks  him  off  the  train, 
will  not  render  the  employer  liable  under  the  Alabama 
act,  because  the  brakeman  is  guilty  of  contributory 
negligence.1 

§  119.  Inference  of  Due  Care. 

In  a  few  cases  where  an  employee  has  been  killed 
and  his  death  was  not  witnessed  by  any  one,  the  Mas- 
sachusetts court  has  held  that  an  inference  of  his  due 
care  is  justified  if  all  the  attending  circumstances  are 
in  evidence  and  they  fail  to  show  any  fault  on  his  part. 
The  mere  absence  of  evidence  of  his  fault  will  author- 
ize a  finding  of  due  care.2  This  rule  is  an  important 
qualification  of  the  Massachusetts  rule  that  the  burden 
is  upon  the  plaintiff  to  show  due  care.  If  direct  and 
positive  evidence  of  what  the  injured  person  was  doing 
at  the  time  of  the  injury  were  required,  a  plaintiff  could 
never  recover  when  the  injury  resulted  in  immediate 
death  and  no  one  witnessed  the  accident. 

1  Schlaff  v.  Louisville  &c.  Ry.,  100  Ala.  377. 

2  Caron  v.  Boston  &  Albany  Ry.,  164  Mass.  523  ;  Thyng  v.  Fitchburg 
Ry.,  156  Mass.  13  ;  Maguire  v.  Fitchburg  Ry.,  146  Mass.  379. 


CONTRIBUTORY   NEGLIGENCE.  175 

In  Griffin  v.  Overman  Wheel  Co.,  61  Fed.  Rep.  568, 
a  night-watchman  was  found  dead  on  the  ground  below 
a  narrow  unrailed  bridge  running  between  two  buildings 
owned  by  the  defendant.  It  was  customary  for  him  to 
pass  over  this  bridge  in  making  his  rounds.  The  night 
of  his  death  was  cold,  dark,  and  frosty,  and  the  bridge 
was  in  a  slippery  condition.  There  was  no  direct  and 
positive  evidence  as  to  what  he  was  doing  at  the  time 
he  met  his  death,  or  as  to  how  it  was  caused.  In  an 
action  under  the  Massachusetts  act  of  1887,  the  presid- 
ing judge  ruled,  at  the  defendant's  request,  that  there 
was  no  evidence  that  the  deceased  was  in  the  exercise 
of  due  care,  and  ordered  a  verdict  for  the  defendant. 
The  Circuit  Court  of  Appeals,  however,  set  aside  the 
verdict  and  ordered  a  new  trial,  on  the  ground  that  the 
facts  proved  would  justify  the  jury  in  the  inference  that 
he  was  in  the  exercise  of  due  care. 

§  120.    Selecting   Dangerous    Mode    of  performing 
Work  when  Safe  Way  exists. 

Contributory  negligence  may  consist  in  choosing  a 
dangerous  mode  of  doing  work  when  there  is  a  safer 
way  of  performing  the  same  duty. 

Thus,  if  the  uncoupling  of  cars  in  motion  may  be 
effected  in  safety  while  standing  on  the  platform  of  one 
of  them,  an  employee  who  goes  in  between  them  and 
attempts  to  uncouple  them  while  in  motion  is  guilty  of 
contributory  negligence,  and  cannot  recover  under  the 
Alabama  Employers'  Liability  Act  for  a  defect  in  the 
condition  of  the  draw-head  attached  to  one  of  the  cars.1 

In  Tennessee  Coal  Co.  v.  Herndon,  100  Ala.  451, 458, 

1  Memphis  &c.  Ry.  v.  Graham,  94  Ala.  545. 


176  EMPLOYERS'  LIABILITY  ACTS. 

Mr.  Justice  Coleman  for  the  court  says,  in  an  action 
under  the  statute :  "  If  a  party  selects  a  dangerous  way 
to  perform  a  duty  when  there  is  a  safe  way,  knowing 
the  way  selected  to  be  dangerous,  or  if  the  danger  is 
'  apparent '  or  '  obvious,'  then  he  assumes  the  risk,  and 
is  guilty  of  contributory  negligence."  But  in  the  same 
case  it  was  held  that  the  mere  fact  that  an  employee 
was  injured  because  of  the  way  selected  by  him,  when 
if  he  had  selected  the  other  way  he  would  have  escaped 
injury,  does  not  of  itself  constitute  contributory  negli- 
gence, and  that  the  result  of  his  action  is  not  the  true 
test  of  the  question.  In  this  case  the  plaintiff's  intes- 
tate, while  assisting  the  regular  "  dumper  "  in  turning 
the  cinder  out  of  a  large  pot,  was  jerked  into  the  pot 
by  its  sudden  tilting  over,  and  was  killed  by  contact 
with  the  mass  of  molten  cinder  in  the  pot.  At  the 
time  of  the  accident  the  deceased  was  standing  on  the 
trucks  which  supported  the  cinder-pot.  The  evidence 
was  conflicting  as  to  whether  the  ground  or  the  trucks 
were  the  safer  place  to  stand  for  this  purpose.  It  was 
held  that  a  verdict  for  the  plaintiff  was  proper,  there 
having  been  certain  defects  in  the  safety  chains  and 
other  apparatus  connected  with  the  pot. 

In  Louisville  &c.  Ry.  v.  Orr,  91  Ala.  548,  554,  Mr. 
Justice  Coleman,  in  delivering  the  opinion  of  the  court, 
says:  "If  there  was  evidence  to  satisfy  the  jury  that 
plaintiff's  intestate  selected  a  dangerous  way  to  pass 
from  one  car  to  another,  knowing  that  the  way  selected 
was  dangerous,  when  there  was  a  safe  way  apparent  to 
him,  he  was  guilty  of  such  contributory  negligence  as 
to  constitute  a  full  defence  to  the  action." 1 

•  1  Citing  Mobile  &c.  Ry.  v.  Holborn,  84  Ala.  137. 


CONTRIBUTORY   NEGLIGENCE.  177 

A  workman  who  feeds  a  circular  saw  by  means  of 
his  hand,  knowing  a  safer  practicable  method,  is  not  in 
the  exercise  of  due  care,  and  cannot  recover  against  his 
employer  at  common  law  for  an  injury  to  his  hand 
caused  by  a  defect  in  the  saw.1  An  employee  who,  at 
the  request  of  a  fellow-workman,  mounts  a  ladder  to 
repair  a  dangerous  part  of  the  machinery  while  it  is  in 
motion,  instead  of  waiting  to  have  it  stopped,  is  guilty 
of  contributory  negligence,  and  cannot  recover  for  an 
injury  caused  by  a  defect  in  the  ladder.2 

§  121.  Same. 

In  Richmond  &c.  Ry.  v.-  Bivins  (Ala.),  15  So.  Rep. 
515,  a  freight  brakeman  was  pulled  off  the  caboose,  as 
he  was  boarding  it  after  setting  a  switch,  by  his  clothes 
catching  in  the  switch.  At  the  station  where  the  acci- 
dent happened  the  conductor  gave  the  plaintiff  this 
order  :  "  Set  up  your  switch ;  catch  your  caboose  ;  hold 
the  cars ;  cut  them  loose ;  run  them  on  the  side  track, 
and  get  away  quick."  In  obedience  to  these  instruc- 
tions, the  plaintiff  set  the  switch,  and,  after  the  cars  had 
passed  from  the  main  track  on  to  the  side  track,  he  stood 
near  the  switch  waiting  for  the  train  to  back  down  to 
him,  and  when  the  rear  platform  of  the  caboose  reached 
him,  he  grasped  the  rails  of  the  rear  platform  with  both 
hands,  put  his  left  foot  on  the  lowest  step  of  the  plat- 
form, and  while  in  the  act  of  drawing  up  his  right  foot 
the  leg  of  his  trousers  was  caught  in  the  machinery  of 
the  switch,  his  right  foot  drawn  back,  his  left  foot 
slipped  from  the  step,  and  both  legs  were  drawn  under 

1  Wilson  v.  Steel  Edge  Stamping  Co.,  163  Mass.  315. 

2  Cahill  v.  Hilton,  106  N.  Y.  512. 


178  EMPLOYERS'  LIABILITY  ACTS. 

the  cars  and  cut  off  just  below  the  knees.  There  was 
evidence  tending  to  show  that  it  was  customary  for 
brakemen  on  the  defendant  railroad  to  board  trains  in 
motion  after  setting  switches,  though  it  was  not  disputed 
that  the  brakeman  could  stop  the  train,  if  he  chose  to 
do  so,  and  make  it  wait  while  he  boarded  it.  It  was 
held  that,  in  boarding  the  train  while  in  motion  instead 
of  making  it  stop  and  then  boarding  it,  he  was  guilty  of 
contributory  negligence  as  matter  of  law,  and  that  a 
verdict  should  have  been  ordered  for  the  defendant. 
In  the  opinion  by  Mr.  Justice  Haralson  it  is  said  on 
page  517 :  "  It  is  a  familiar  principle,  which  common 
sense  as  well  as  the  rules  of  law  ought  to  teach  any 
one,  that  where  one  in  the  employ  of  a  railroad  know- 
ingly selects  a  dangerous  way  when  a  safer  one  is 
apparent  to  him,  and  is  thereby  injured,  he  is  guilty 
of  contributory  negligence."  The  learned  justice  also 
states  that,  "  with  the  loss  of  only  a  moment  or  two,  he 
might  have  brought  it  [the  train]  to  a  standstill,  to 
enable  him  to  board  it."  1  This  case  was  followed  with 
approval  in  Davis  v.  Western  Ry.,  104  Ala.  000,  18  So. 
Rep.  173. 

1  This  case  seems  to  carry  the  doctrine  of  contributory  negligence  to 
an  unwarrantable  extent.  The  plaintiff  was  acting  under  orders  to  be 
quick,  and  he  would  have  violated  these  orders  if  he  had  brought  the  train 
to  a  standstill  iu  order  to  enable  him  to  board  it  in  safety.  The  loss  of 
even  a  moment  or  two,  at  each  place  where  a  switch  is  set  for  a  freight 
train,  would  greatly  increase  the  running  time,  and  a  brakeman  who 
persisted  in  such  conduct  would  not  retain  his  position  very  long.  The 
case  should  have  been  submitted  to  the  jury.  Hannah  v.  Connecticut 
River  Ry.,  154  Mass.  529  ;  Lawless  v.  Connecticut  River  Ry.,  136  Mass.  1 ; 
Bowers  v.  Connecticut  River  Ry.,  162  Mass.  312. 


CONTRIBUTORY  NEGLIGENCE.         179 

§  122.  Other  Illustrations  of  Due  Care  and  Con- 
tributory Negligence. 

Due  care  and  diligence  do  not  require  a  brakeman  to 
abandon  his  post  and  jump  from  the  car  at  the  first 
instant  that  he  discovers  there  is  trouble  with  the 
brake,  although  the  car  is  on  a  descending  grade  with- 
out a  locomotive.1 

In  Sullivan  v.  Old  Colony  Ry.,  153  Mass.  118,  a 
switchman  was  killed  by  a  locomotive  engine  while  in 
the  act  of  recrossing  the  tracks  after  throwing  a  switch. 
The  injury  occurred  in  the  daytime,  at  a  time  when  a 
locomotive  usually  passed.  He  turned  his  back  to  the 
engine,  and  did  not  look  around  towards  the  engine 
until  just  before  it  struck  him.  In  an  action  by  his 
widow  under  the  Employers'  Liability  Act,  it  was  held 
that  he  was  not  in  the  exercise  of  due  care  and  diligence 

O 

at  the  time  of  the  injury,  and  that  the  plaintiff  could 
not  recover. 

In  Lothrop  v.  Fitchburg  Railroad,  150  Mass.  423,  a 
freight  brakeman  was  killed  by  having  his  head  crushed 
between  the  ends  of  two  projecting  timbers  on  two  flat 
cars,  while  in  the  act  of  coupling  them.  He  had  been 
given  general  orders  by  the  conductor  to  do  the  coup- 
ling, and  had  made  several  couplings  on  the  north  side 
of  the  track  before  the  injury  occurred.  The  timbers 
which  killed  him  projected  over  the  north  side  of  the 
cars,  and  the  coupling  could  have  been  safely  done 
either  from  the  south  side  of  the  track  or  from  beneath 
the  cars.  It  was  about  noon  on  a  clear  day,  and  there 
was  nothing  to  distract  his  attention.  In  this  action 

1  Spaulding  v.  Flynt  Granite  Co.,  159  Mass.  587. 


180  EMPLOYEES'  LIABILITY  ACTS. 

against  the  railroad  company  under  the  Employers'  Lia- 
bility Act,  it  was  held  that  the  danger  was  an  obvious 
one,  and  that  the  deceased  was  not  in  the  exercise  of  due 
care  and  diligence  within  the  meaning  of  the  act,  and 
that  the  action  could  not  be  maintained.  In  delivering 
the  opinion  of  the  court,  Mr.  Justice  Field  says :  "  The 
general  rule  of  law  is,  that  when  the  danger  is  obvious, 
and  is  of  such  a  nature  that  it  can  be  appreciated  and 
understood  by  the  servant  as  well  as  by  the  master,  or 
by  any  one  else,  and  when  the  servant  has  as  good  an 
opportunity  as  the  master  or  as  any  one  else  of  seeing 
what  the  danger  is,  and  is  permitted  to  do  his  work  in 
his  own  way,  and  can  avoid  the  danger  by  the  exercise 
of  reasonable  care,  the  servant  cannot  recover  against 
the  master  for  injuries  received  in  consequence  of  the 
condition  of  things  which  constituted  the  danger.  If 
the  servant  is  injured,  it  is  from  his  own  want  of  care." 
Pages  424,  425. 

Upon  like  facts  it  has  been  held  that  the  employer 
was  not  liable  at  common  law.1 

In  Browne  v.  New  York  &c.  Ry.,  158  Mass.  247,  a 
brakeman  was  killed  by  a  freight-car  falling  over  upon 
him.  He  was  sent  to  uncouple  the  caboose  car  from 
the  engine,  in  order  that  it  might  make  a  flying  switch. 
The  engineer  slackened  the  speed  of  the  train  to  let  the 
brakeman  pull  out  the  coupling-pin,  and,  although  the 
deceased  did  not  succeed  in  pulling  the  pin  out,  he  gave 
the  signal  for  the  engineer  to  go  faster.  The  engineer 
increased  the  speed  of  the  train,  and  as  soon  as  the  engine 
passed  the  switch  the  switchman  threw  the  switch,  the 
coupling  held,  the  caboose  car  was  pulled  off  the  track, 

1  Boyle  v.  New  York  &c.  Ry.,  151  Mass.  102. 


CONTRIBUTORY  NEGLIGENCE.         181 

and  fell  over  and  killed  the  brakeman.  The  pin  and 
the  hole  in  the  stiff  shackle  were  in  good  condition.  In 
an  action  by  the  brakeman's  dependent  next  of  kin 
under  the  statute,  it  was  held  that  the  brakeman  was 
guilty  of  contributory  negligence  in  giving  the  signal 
to  start  faster  before  he  had  pulled  out  the  pin,  and 
that  the  plaintiff  could  not  recover. 

It  is  not  contributory  negligence  for  a  switchman  to 
stand  upon  the  foot-board  of  an  engine-tender  in  un- 
coupling a  car  from  the  tender,  although  a  rule  of  the 
company  forbids  switchmen  to  go  between  the  cars  in 
coupling  or  uncoupling ;  and  such  act  will  not  defeat 
a  recovery  under  the  Employers'  Liability  Act  of  Ala- 
bama.1 

For  other  illustrations  as  to  what  conduct  by  an 
injured  employee  is  or  is  not  due  care  and  diligence 
within  the  meaning  of  the  Employers'  Liability  Act,  see 
the  cases  cited  in  the  note.2 

1  Richmond  &c.  Ry.  v.  Jones,  92  Ala.  218. 

2  Graham  v.  Boston  &  Albany  Ry.,  156  Mass.  4 ;  McLean  v.  Chemical 
Paper  Co.,  165  Mass.  5 ;  42  N.  E.  Rep.  330  ;  Burgess  v.  Davis  Sulphur 
Ore  Co.,  165  Mass.  71 ;  42  N.  E.  Rep.  501  ;  Mobile  &c.  Ry.  v.  Holbora, 
84  Ala.  133  ;  Louisville  &c.  Ry.  v.  Woods,  104  Ala.  000  ;  17  So.  Rep.  41. 


CHAPTER  IX. 


NOTICE. 


Section 

123.  Statutes  relating  to  notice. 

124.  Prior  notice  necessary. 

125.  Written  notice  required. 

126.  Notice  in  case  of  instantaneous 

death. 

127.  Notice  must  show  that  it  was 

intended  as  the   basis  of  a 
claim  for  damages. 


Section 

128.  Notice  of  the  "time"  of  the 

injury. 

129.  Notice  of  the  "  place  "  of  the 

injury. 

130.  Notice  of  the  "cause"  of  the 

injury. 

131.  No  intention  to  mislead,  etc. 

132.  Notice  signed  by  plaintiff's  at- 

torney. 


§  123.  Statutes  relating  to  Notice. 

THE  Massachusetts  statute  relating  to  notice,  together 
with  the  amendment  of  1888,  ch.  155  (the  amendment 
being  enclosed  within  brackets),  reads  as  follows :  — 

"  No  action  for  the  recovery  of  compensation  for 
injury  or  death  under  this  act  shall  be  maintained 
unless  notice  of  the  time,  place,  and  cause  of  the  injury 
is  given  to  the  employer  within  thirty  days,  and  the 
action  is  commenced  within  one  year  from  the  occur- 
rence of  the  accident  causing  the  injury  or  death. 
[The  notice  required  by  this  section  shall  be  in  writing, 
signed  by  the  person  injured  or  by  some  one  in  his 
behalf  ;  but  if,  from  physical  or  mental  incapacity,  it  is 
impossible  for  the  person  injured  to  give  the  notice 
within  the  time  provided  in  said  section,  he  may  give 
the  same  within  ten  days  after  such  incapacity  is 


NOTICE.  183 

removed ;  and  in  case  of  his  death  without  having 
given  the  notice,  and  without  having  been  for  ten 
days  at  any  time  after  his  injury  of  sufficient  capacity 
to  give  the  notice,  his  executor  or  administrator  may 
give  such  notice  within  thirty  days  after  his  appoint- 
ment.] But  no  notice  given  under  the  provisions  of 
this  section  shall  be  deemed  to  be  invalid  or  insuf- 
ficient solely  by  reason  of  any  inaccuracy  in  stating 
the  time,  place,  or  cause  -of  the  injury  ;  provided  it  is 
shown  that  there  was  no  intention  to  mislead,  and  that 
the  party  entitled  to  notice  was  not,  in  fact,  misled 
thereby."  l 

The  provisions  of  the  Colorado  act  are  very  like 
those  of  Massachusetts  upon  this  subject,  except  that 
sixty  days  instead  of  thirty  days  are  allowed.2  This 
act,  and  also  the  English  act,  are  contained  in  the 
Appendix.  The  Alabama  act  does  not  require  notice  to 
be  given,  nor  does  the  Indiana  statute. 

§  124.  Prior  Notice  Necessary. 

Where  notice  is  required,  no  action  can  be  main- 
tained under  the  Employers'  Liability  Acts  unless  notice 
of  the  injury  has  been  given  before  the  action  is 
brought.  The  mere  bringing  of  the  action  is  not  suf- 
ficient notice.3  "  The  requirement  of  notice  is  held  to 
make  a  condition  precedent  to  the  right  to  bring  an 
action,  not  on  a  nice  interpretation  of  the  particular 
words  used,  but  upon  a  general  view  of  what  the  legis- 

1  Mass.  St.  1887,  ch.  270,  §  3.     See,  also,  Mass.  St.  1894,  ch.  389. 

2  Colo.  Laws  of  1893,  ch.  77,  §  2. 

»  Foley  v.  Pettee  Machine  Co.,  149  Mass.  294,  296  ;  Moyle  v.  Jenkins, 
8  Q.  B.  D.  116,  118  ;  Keen  v.  Millwall  Dock  Co.,  8  Q.  B.  D.  482,  484. 


184  EMPLOYERS'  LIABILITY  ACTS. 

lature  would  be  likely  to  intend."  The  making  out 
of  the  writ  is  deemed  the  bringing  of  the  action  within 
the  meaning  of  this  rule.  If  the  writ  be  made  out  in 
the  morning  and  the  notice  be  served  in  the  afternoon 
of  the  same  day,  the  action  cannot  be  maintained.2 

§  125.    Written  Notice  required. 

The  Massachusetts  act  of  1887  did  not  expressly 
require  the  notice  to  be  in  writing ;  but  by  the  amend- 
ment passed  in  1888  (St.  1888,  ch.  155,  §  1)  written 
notice  was  rendered  necessary  to  the  maintenance  of 
an  action  under  the  statute. 

In  England,  although  the  statute  does  not  in  terms 
require  written  notice,  yet  the  provisions  relating  to 
giving  the  name  and  address  of  the  person  injured,  and 
to  serving  the  notice  by  post,  etc.,  have  been  held  to 
show  that  the  notice  must  be  in  writing.3 

In  Keen  v.  Millwall  Dock  Co.,  8  Q.  B.  D.  482, 
the  plaintiff  made  a  verbal  report  of  his  injury  to  the 
defendant's  inspector,  who  took  down  the  details  in 
writing  and  sent  them  to  the  superintendent.  After- 
wards the  plaintiff's  solicitor  wrote  a  letter  to  the 
defendant,  stating  that  he  was  instructed  to  apply  for 
compensation  for  the  injury,  "  particulars  of  which  have 
already  been  communicated  to  your  superintendent." 
It  was  held  by  the  Court  of  Appeal  that  the  notice 
was  not  in  writing,  and  that  the  action  could  not  be 
maintained. 

1  Veginan  v.  Morse,  160  Mass.  143,  146,  per  Holmes,  J. 

2  Veginan  v.  Morse,  160  Mass.  143. 

8  Moyle  v.  Jenkins,  8  Q.  B.  D.  116  ;  Keen  v.  Millwall  Dock  Co.,  8 
Q.  B.  D.  482. 


NOTICE.  185 

• 

§  126.  Notice  in  Case  of  Instantaneous  Death. 

When  the  employee  is  instantly  killed,  the  notice 
required  by  the  Massachusetts  statute  may  be  given 
either  by  some  one  in  his  behalf,  as  by  his  widow, 
within  thirty  days  from  the  occurrence  of  the  accident 
causing  his  death,1  or  by  the  executor  or  administrator 
within  thirty  days  after  his  appointment.2  Although  it 
was  intimated  in  Gustafsen  y.  Washburn  &  Moen 
Manuf.  Co.,  153  Mass.  468,  that  notice  by  an  executor 
or  administrator  would  not  support  an  action  by  the 
next  of  kin,  it  was  subsequently  decided  that  such 
notice  was  sufficient  for  that  purpose,  on  the  ground, 
as  stated  by  Mr.  Justice  AUen  for  the  court,  that  "  the 
statute  was  designed  to  extend  the  liability  of  employers 
for  personal  injuries  suffered  by  employees  in  their 
service,  and  the  requirements  as  to  notice  should  receive 
a  liberal  construction." 3 

§  127.  Notice  must  show  that  it  was  intended  as  the 
Basis  of  a  Claim  for  Damages. 

Where  the  notice  given  failed  to  show  that  it  was 
intended  as  the  basis  of  a  claim  against  the  defendant, 
or  that  it  was  given  in  behalf  of  the  plaintiff,  it  was 
held  that  an  action  under  the  Employers'  Liability  Act 
could  not  be  maintained.4 

1  Gustafsen  v.  Washburn  &  Moen  Manuf.  Co.,  153  Mass.  468. 

2  Daly  v.  New  Jersey  Steel  Co.,  155  Mass.  1. 

*  Daly  v.  New  Jersey  Steel  Co.,  155  Mass.  1,  4. 

*  Driscoll  v.  Fall  River,  163  Mass.  105.     See,  also,  Kenady  v.  Law- 
rence, 128  Mass.  318.     But  see  Taylor  tr.  Woburn,  130  Mass.  494= ;  Savory 
v.  Haverhill,  132  Masa.  524, 


186  EMPLOYERS'  LIABILITY  ACTS. 

• 

§  128.  Notice  of  the  "  Time"  of  the  Injury. 
Under  the  Massachusetts  act  it  is  not  necessary 
that  the  notice  should  state  the  hour  when  the  injury 
occurred.  A  statement  of  the  day  is  sufficient.1  A  like 
rule  prevails  under  the  statute  relating  to  defects  in 
highways.2  In  Taylor  v.  Woburn,  ubi  supra,  notice 
that  the  injury  was  received  on  "  Christmas  morning  " 
was  held  to  sufficiently  state  the  time  of  the  accident. 

§  129.  Notice  of  the  "  Place  "  of  the  Injury. 

With  respect  to  the  place  of  the  injury,  under  the 
Massachusetts  Employers'  Liability  Act,  the  decisions 
under  the  statute  giving  a  right  of  action  for  personal 
injuries  caused  by  defects  in  the  highway  are  in  point. 

As  to  what  description  of  the  "  place "  of  an  acci- 
dent for  an  injury  caused  by  a  defect  in  a  highway  is 
sufficient  under  the  statute  of  Massachusetts  (Pub.  Sts. 
ch.  52,  §  18),  see  below.3 

As  to  what  description  of  the  place  of  a  highway 
accident  is  not  sufficient,  see  cases  cited  in  the  foot- 
note.4 

1  Donahoe  v.  Old  Colony  Ry.,  153  Mass.  356  ;  Drommie  v.  Hogan,  153 
Mass.  29. 

2  Taylor  v.  "Woburn,  130  Mass.  494  ;  Lyman  v.  Hampshire,  138  Mass. 
74  ;  Cronin  v.  Boston,  135  Mass.  110  ;  Aston  v.  Newton,  134  Mass.  507. 

8  Hughes  v.  Lawrence,  160  Mass.  474  ;  Connors  v.  Lowell,  158  Mass. 
336  ;  Richardson  v.  Boston,  156  Mass.  145  ;  Pendergast  v.  Clinton,  147 
Mass.  402  ;  Lyman  v.  Hampshire,  138  Mass.  74  ;  Sargent  v.  Lynn,  138 
Mass.  599  ;  Aston  v.  Newton,  134  Mass.  507  ;  Welch  v.  Gardner,  133 
Mass.  529. 

4  Gardner  v.  Weymouth,  155  Mass.  595  ;  Shallow  v.  Salem,  136  Mass. 
136  ;  Cronin  v.  Boston,  135  Mass.  110  ;  Post  v.  Foxborough,  131  Mass. 
202  ;  Miles  v.  Lynn,  130  Mass.  398  ;  Donnelly  v.  Fall  River,  130  Mass. 
115. 


NOTICE.  187 

§  130.  Notice  of  the  "  Cause  "  of  the  Injury. 

In  Beauregard  v.  Webb  Granite  Co.,  160  Mass.  201, 
an  employee  was  killed  by  a  stone  falling  upon  him 
through  negligence  in  raising  it  without  warning  him. 
The  notice  to  the  employer  stated  that  the  deceased 
was  killed  "  by  a  stone  being  precipitated  upon  him 
from  your  derrick  as  a  result  of  your  negligence,  and 
of  the  negligence  of  some  person  for  whose  negligence 
you  are  liable."  Held,  that  the  cause  of  the  injury 
was  either  stated  with  sufficient  accuracy,  or  that  the 
jury  might  have  found  it  sufficient,  on  the  ground  that 
there  was  no  intention  to  mislead,  and  that  in  fact  the 
defendant  was  not  misled  by  it. 

In  Donahoe  v.  Old  Colony  Ry.,.  153  Mass.  356,  in 
which  a  freight  brakeman  was  injured  by  reason  of 
the  conductor's  negligence  in  chaining  a  car  with  a 
broken  draw-bar  to  the  engine,  and  in  failing  to  notify 
the  plaintiff  of  the  fact,  it  was  held  that  the  following 
notice  stated  the  time,  place,  and  cause  of  the  injury 
with  sufficient  accuracy  :  — 

"  The  Old  Colony  Railroad  Company  is  hereby  noti- 
fied that  on  the  fifteenth  day  of  October,  1888,  when 
within  one  hundred  yards  northerly  from  the  railroad 
station  at  Readville,  Mass.,  on  that  part  of  the  said  Old 
Colony  Railroad  Company  formerly  known  as  the  Bos- 
ton and  Providence  Railroad  Company,  I  was  injured 
by  my  right  leg  being  caught  between  a  dump-car  and 
tender  of  an  engine,  I  at  the  time  standing  on  the 
dump-car,  which  was  the  first  car  of  a  train  of  cars  to 
which  said  tender  of  said  engine  was  attached.  Said 
injury  was  caused  by  reason  of  a  broken  draw-bar  on 


188  EMPLOYERS'  LIABILITY  ACTS. 

the  dump-car,  which  allowed  the  dolly  varden  on  the 
tender  of  the  engine  to  run  up  against  the  end  of  the 
dump-car,  and  which  caught  and  injured  my  leg.1  This 
notice  is  given  under  the  provisions  of  chapter  270  of 
the  Acts  and  Resolves  of  Massachusetts  of  the  year 
1887,  and  of  chapter  155  of  said  acts  of  the  year 
1888." 

In  Lynch  v.  Allyn,  160  Mass.  248,  the  notice  stated 
the  cause  of  the  injury  to  be  "  the  falling  of  a  bank  of 
earth."  The  proof  was  to  the  effect  that  the  defend- 
ant's superintendent  failed  to  station  any  one  on  the 
bank  to  warn  the  plaintiff  of  the  danger  of  the  bank's 
falling,  and  also  failed  to  shore  up  the  bank.  It  was 
objected  that  the  notice  was  defective  because  it  did 
not  refer  to  the  superintendent  or  to  his  conduct ;  but 
the  court  held  that  the  cause  of  the  injury  was  properly 
stated,  and  added  that  "  it  was  not  necessary  for  the 
plaintiff  to  state  the  cause  of  that  cause."  2 

In  Brick  v.  Bosworth,  162  Mass.  334,  plaintiff's  hus- 
band was  instantly  killed,  and  the  notice  stated  the 
cause  of  the  injury  in  these  words  :  "  The  cause  of  the 
death  of  my  said  husband  was  the  falling  of  a  derrick 
upon  him  on  account  of  the  same  being  improperly  or 
insecurely  fastened."  It  was  held  that  the  notice  was 
sufficiently  full  and  specific  to  entitle  the  plaintiff  to 
recover,  either  under  the  second  clause,  relating  to  the 
negligence  of  a  superintendent,  or  under  the  first  clause, 
relating  to  a  defect  in  the  condition  of  the  ways,  works, 
or  machinery,  etc. 

1  The  facts  stated  in  the  report  of  the  case  show  that  the  chief  cause 
of  the  injury  was  the  negligence  of  the  conductor  in  omitting  to  inform 
the  plaintiff  of  the  broken  draw-bar. 

2  Per  Lathrop,  J.,  for  the  court,  p.  255. 


NOTICE.  189 

In  actions  for  defects  in  the  highway,  the  following 
cases  contain  illustrations  of  sufficient  descriptions  of 
the  "  cause "  of  the  injury  :  Young  v.  Douglass,  157 
Mass.  383 ;  Richardson  v.  Boston,  156  Mass.  145 ; 
Pendergast  v.  Clinton,  147  Mass.  402 ;  Canterbury  v. 
Boston,  141  Mass.  215 ;  Grogan  v.  Worcester,  140 
Mass.  227 ;  Davis  v.  Charlton,  140  Mass.  422 ;  Dalton 
v.  Salem,  136  Mass.  278 ;  Aston  v.  Newton,  134  Mass. 
507 ;  McCabe  v.  Cambridge,  134  Mass.  484 ;  Welch  v. 
Gardner,  133  Mass.  529 ;  Bailey  v.  Everett,  132  Mass. 
441 ;  Whitman  v.  Groveland,  131  Mass.  553 ;  Taylor 
v.  Woburn,  130  Mass.  494. 

For  insufficient  statements  of  the  "  cause  "  of  a  high- 
way accident,  see  Roberts  v.  Douglass,  140  Mass.  129; 
Lyon  v.  Cambridge,  136  Mass.  419  j  Cronin  v.  Boston, 
135  Mass.  110;  Shea  v.  Lowell,  132  Mass.  187;  Dal- 
ton v.  Salem,  131  Mass.  551 ;  Madden  v.  Springfield, 
131  Mass.  441 ;  Noonan  v.  Lawrence,  130  Mass.  161 ; 
Miles  v.  Lynn,  130  Mass.  398. 

§  131.  -ZVb  Intention  to  mislead,  etc. 
In  Drommie  v.  Hogan,  153  Mass.  29,  the  notice 
stated  the  cause  of  the  plaintiff's  injury  to  be  "  by  rea- 
son of  a  defective  or  insufficient  staging,  and  the  fall 
of  the  staging."  The  plaintiffs  proof  showed  that  the 
cause  of  the  injury  was  a  defective  condition  of  a  ledger- 
board,  which  broke  and  caused  the  staging  to  fall. 
The  defendant  contended  that  he  was  misled  by  the 
notice,  and  testified  that  he  did  not  know  what  defect 
was  referred  to  in  the  notice,  or  that  the  ledger-board 
was  broken.  The  evidence  showed  further,  however, 
that  shortly  after  the  injury  the  defendant  came  to 


190  EMPLOYERS'  LIABILITY  ACTS. 

the  place  where  it  happened  and  assisted  in  taking 
away  the  injured  man ;  and  that  the  staging  and  the 
broken  ledger-board  then  lay  in  a  heap  upon  the  ground. 
The  court  held  that  even  if  the  notice  was  defective 
in  stating  the  cause  of  the  injury,  which  the  court  did 
not  decide,  still  the  evidence  warranted  the  jury  in 
finding  that  the  plaintiff  had  no  intention  to  mislead 
the  defendant,  and  that  the  latter  was  not  in  fact 
misled  thereby. 

In  actions  against  cities  or  towns  for  defects  in  the 
highways,  the  statute  contains  like  provisions  respecting 
an  absence  of  intention  to  mislead.  As  to  what  notices 
are  or  are  not  sufficient  under  this  clause,  see  Fuller  v. 
Hyde  Park,  162  Mass.  51 ;  Norwood  v.  Somerville,  159 
Mass.  105 ;  Veno  v.  Waltham,  158  Mass.  279 ;  Gard- 
ner v.  Weymouth,  155  Mass.  595 ;  Bowes  v.  Boston, 
155  Mass.  344 ;  Fortin  ».  Easthampton,  142  Mass.  486 ; 
Liffin  v.  Beverly,  145  Mass.  549;  Canterbury  v.  Bos- 
ton, 141  Mass.  215. 

§  132.  Notice  signed  by  Plaintiff"' 's  Attorney. 
Under  the  Massachusetts  statute  of  1888,  ch.  155, 
which  provides  that  the  notice  "  shall  be  in  writing, 
signed  by  the  person  injured,  or  by  some  one  in  his 
behalf,"  a  notice  signed  by  his  attorney  thus,  "  A  B, 
attorney  for  C  D,"  is  a  sufficient  signing  on  behalf  of 
CD.1 

1  Dolan  v.  Alley,  153  Mass.  380.    See,  also,  Spellman  v.  Chicopee,  131 
Mass.  443. 


CHAPTER  X. 


LIMITATION    OF   ACTIONS. 


Section 

133.  Statutes,  etc. 

134.  Amendment  setting  forth  new 

cause  of  action,  -  filed  after 
statute  of  limitations  has  run. 

135.  Same.     Injury  received  in  an- 

other State. 

136.  Do  exceptions  or  saving  clauses 

in  the  general  statute  of  lim- 
itations apply  to  actions  un- 


Section 

der  the  Employers'  Liability 
Acts? 

137.  Conflict  of  laws. 

138.  Same. 

139.  Same.    When  Employers'  Lia- 

bility Act  does  not  limit  time 
for  action. 

140.  Same.  When    right   exists  at 

common  law. 


§  133.  Statutes,  etc. 

THE  third  section  of  the  Massachusetts  act  provides 
that  — 

"  No  action  for  the  recovery  of  compensation  for 
injury  or  death  under  this  act  shall  be  maintained 
unless  .  .  .  the  action  is  commenced  within  one  year 
from  the  occurrence  of  the  accident  causing  the  injury 
or  death."  l 

The  period  in  Colorado  is  two  years ;  and  in  England 
six  months,  or  in  case  of  death  twelve  months,  from 
the  time  of  death.2 

The  Alabama  Employers'  Liability  Act  prescribes 
no  time  for  the  commencement  of  action.  The  matter 
is  therefore  controlled  by  the  general  statute  of  limita- 

1  St.  1887,  ch.  270,  §  3. 

2  Colorado  Laws  of  1893,  ch.  77,  §  2  ;  43  &  44  Yict.  cap.  42,  §  4. 


192  EMPLOYERS'  LIABILITY  ACTS. 

tions.  In  O'Kief  v.  Memphis  &c.  Ry.,  99  Ala.  524,  a 
close  question  arose ;  namely,  whether  an  action  under 
the  Employers'  Liability  Act  for  the  negligent  killing 
of  an  employee  was  governed  by  section  2589  of  the 
Code,  prescribing  two  years  for  the  negligent  killing  of 
a  human  being,  or  by  section  2619,  clause  6,  providing 
that  "actions  for  any  injury  to  the  person  or  rights  of 
another,  not  arising  from  contract,  and  not  herein 
specifically  enumerated,"  shall  be  brought  within  one 
year.  A  majority  of  the  court  held,  without  assigning 
reasons,  that  the  action  was  governed  by  the  one-year 
period,  and  therefore  barred  in  this  case.  It  follows, 
a  fortiori,  that,  where  the  employee's  injury  does  not 
result  in  death,  the  action  under  the  statute  is  barred 
in  one  year.1 

§  134.  Amendment  setting  forth  New  Cause  of  Action, 

filed  after  Statute  of  Limitations  has  run. 
The  time  limited  for  bringing  suit  under  the  Em- 
ployers' Liability  Act  applies  not  only  to  the  action 
itself,  but  also  to  an  amendment  to  the  declaration 
which  sets  forth  a  new  and  independent  cause  of  action 
not  embraced  in  the  original  declaration.  If  the  statu- 
tory period  has  elapsed  between  the  date  of  the  injury 
and  the  date  of  filing  the  amendment,  no  recovery  can 
be  had  upon  the  amended  cause  of  action  if  it  sets  up 
a  new  cause  of  action.2  This  rule  is  well  settled ;  the 
difficulty  arises  in  applying  it  in  practice,  and  in  deter- 

1  See  O'Shields  v.  Georgia  Pacific  Ry.,  83  Ga.  621  ;  Louisville  &c.  Ry. 
v.  Woods,  104  Ala.  000  ;  17  So.  Rep.  41. 

2  Sicard  v.  Davis,  6  Peters,  124  ;  Exposition  Cotton  Mills  v.  Western 
&c.  Ry.,  83  Ga.  441. 


LIMITATION   OF   ACTIONS.  193 

mining  whether  a  given  amendment  involves  a  new 
cause  of  action  within  the  meaning;  of  the  rule.  If 

O 

the  amendment  does  not  set  up  a  new  cause  of  action, 
but  is  merely  a  more  specific  statement  of  the  original 
cause  of  action,  it  is  deemed  to  relate  back  to  the  com- 
mencement of  the  action. 

In  Alabama  the  rule  has  been  enforced  with  some 
strictness  against  plaintiffs.  In  Mohr  v.  Lemle,  69 
Ala.  180,  183,  Mr.  Chief  Justice  Brickell  says  for  the 
court :  "  The  whole  doctrine  of  relation  rests  in  a  fiction 
of  law  adopted  to  subserve  and  not  to  defeat  right  and 
justice.  When  the  amendment  introduces  a  new  right 
or  new  matter,  not  within  the  Us  pendens  and  the  issue 
between  the  parties,  if,  at  the  time  of  its  introduction, 
as  to  such  new  right  or  matter,  the  statute  of  limitations 
has  operated  a  bar,  the  defendant  may  insist  upon  the 
benefit  of  the  statute,  and  to  him  it  is  as  available  as  if 
the  amendment  were  a  new  and  independent  suit." 

In  Alabama  &c.  Ry.  v.  Smith,  81  Ala.  229,  the 
original  declaration  averred  that  the  plaintiff,  being  a 
passenger  on  the  defendant  railroad,  was  forcibly  ejected 
from  his  seat  before  he  reached  his  destination.  The 
amendment  set  up  that  he  was  induced  to  leave  his 
seat  and  to  alight  at  the  wrong  station  by  the  porter 
calling  out  the  name  of  his  station.  It  was  held  that 
the  amendment  presented  a  new  cause  of  action,  and 
that  the  action  upon  it  was  barred  by  the  statute  of 
limitations,  as  it  did  not  relate  back  to  the  time  of 
commencing  the  action. 

Birmingham  Furnace  Co.  v.  Gross,  97  Ala.  220,  was 
an  action  under  the  Alabama  Employers'  Liability  Act 
for  an  injury  resulting  in  the  death  of  plaintiff's  intes- 


194  EMPLOYERS'  LIABILITY  ACTS. 

tate.  The  original  complaint  contained  several  counts, 
alleging,  in  different  forms,  that  his  death  had  been 
caused  by  the  defendant's  negligence.  An  amendment 
setting  forth  the  same  acts,  with  the  additional  charge 
that  the  intestate  acted  in  conformity  to  the  orders  of 
a  person  to  whose  orders  he  was  bound  to  conform,  was 
allowed  by  the  trial  court.  It  was  held  that  the  amend- 
ment was  within  the  Us  pendens  ;  that  it  did  not  set 
up  a  new  cause  of  action  within  the  meaning  of  the 
rule ;  and  that  it  was  not  barred,  but  related  back  to 
the  time  of  the  commencement  of  the  action.1 

In  Texas  &  Pacific  Ry.  v.  Cox,  145  U.  S.  593,  the 
declaration  alleged  that  a  freight  conductor  was  injured 
while  attempting  to  make  a  coupling  of  cars,  because  of 
the  defective  condition  of  the  cross-ties  and  of  the  road- 
bed. The  amendment,  filed  after  the  time  allowed  for 
bringing  an  action  had  elapsed,  further  averred  that 
Cox,  in  coupling  the  cars,  as  it  was  his  duty  to  do,  was 
injured  because  the  draw-head  and  coupling-pin  were 
not  suitable  for  the  purpose  for  which  they  were  to  be 
used.  It  was  held  that  the  action  was  not  barred,  for 
the  reason  that,  "as  the  transaction  set  forth  in  both 
counts  was  the  same,  and  the  negligence  charged  in  both 
related  to  defective  conditions  in  respect  of  coupling 
cars  in  safety,  we  are  not  disposed  by  technical  con- 
struction to  hold  that  the  second  count  alleged  another 
and  different  negligence  from  the  first."  Page  604. 

In  Texas  &c.  Ry.  v.  Grimes,  8  Texas  Civ.  App.  000, 
29  S.  W.  Rep.  1104,  it  was  held  that  a  declaration  alleg- 
ing merely  that  the  defendant  had  failed  to  employ  the 

1  See,  also,  Alabama  Great  Southern  Ry.  r.  Chapman,  83  Ala.  453  ; 
Louisville  &c.  Ry.  v.  Woods,  104  Ala.  000  ;  17  So.  Rep.  41. 


LIMITATION   OF  ACTIONS.  195 

plaintiff  may  be  amended,  after  the  statute  of  limita- 
tions has  fully  run,  by  alleging  also  a  breach  of  an 
agreement  to  pay  a  certain  amount  during  plaintiff's 
disability. 

§  135.  Same.    Injury  received  in  Another  State. 

In  Union  Pacific  Ry.  v.  Wyler,  158  U.  S.  285,  the 
plaintiff,  while  in  the  employ  of  the  defendant  railroad, 
was  injured  in  April,  1883,  in  the  State  of  Kansas. 
The  action  was  brought  in  a  state  court  of  Missouri  in 
September,  1885,  and  was  removed  to  the  federal  court 
for  that  district.  The  original  declaration  based  the 
action  upon  the  incompetency  of  a  fellow-servant,  one 
Kline,  through  whose  negligence  the  injury  occurred. 
In  November,  1888,  more  than  five  years  after  the 
injury  occurred,  the  plaintiff,  with  the  defendant's  con- 
sent, filed  an  amended  petition,  grounding  his  action 
upon  the  Kansas  statute  of  1874,  which  is  quoted  in 
the  footnote.1  The  Missouri  period  of  limitation  for 
personal  injuries  was  five  years,  and  this  was  pleaded  as 
a  defence  to  the  amended  petition.  The  question  was 
therefore  directly  presented  whether  or  not  the  amend- 
ment set  forth  a  new  cause  of  action.  The  court  held 
that  it  did  set  forth  a  new  cause  of  action,  and  that  the 
action  was  therefore  barred  by  the  Missouri  statute  of 
limitations.  It  was  further  decided  that  the  limitation 
bar  was  not  prevented  from  attaching  by  the  fact  that 
the  amendment  was  filed  by  consent ;  nor  by  the  fact 

1  "  Every  railroad  company  organized  or  doing  business  in  this  State 
shall  be  liable  for  all  damages  done  to  any  employee  of  such  company  in 
consequence  of  any  negligence  of  its  agents,  or  by  any  mismanagement 
of  its  engineers  or  other  employees  to  any  person  sustaining  damage." 
Laws  of  Kansas,  1874,  ch.  93,  §  1. 


196  EMPLOYERS'  LIABILITY  ACTS. 

that  the  federal  courts  take  judicial  notice  of  the  laws 
of  all  the  States,  though  the  conclusion  was  said  to  be 
"  strengthened  "  (page  295)  by  the  rule  of  law  prevail- 
ing in  Missouri,1  as  well  as  in  most  of  the  States,  that  a 
statute  of  a  sister  State  is  regarded  as  matter  of  fact, 
which  must  be  pleaded  and  proved.  As  the  original 
petition  relied  merely  upon  the  general  common-law  lia- 
bility of  a  master  for  employing  an  incompetent  servant, 
the  amendment,  setting  up  a  special  liability  founded 
upon  a  statute  of  another  State,  was  held  to  be  a  depar- 
ture in  pleading,  averring  a  new  cause  of  action,  upon 
which  the  statute  of  limitations  ran  from  the  time  of  the 
injury  to  the  time  of  the  filing  of  the  amendment,  and 
did  not  relate  back  to  the  commencement  of  the  suit. 

In  Bolton  v.  Georgia  Pacific  Ry.,  83  Ga.  659,  the 
same  question  was  decided  respecting  the  Alabama 
Employers'  Liability  Act.  The  plaintiff,  while  in  the 
employ  of  the  defendant  railroad,  was  injured  in  Ala- 
bama and  brought  this  action  in  Georgia.  The  original 
declaration  was  founded  on  the  common-law  liability  of 
the  employer  for  furnishing  defective  material.  The 
amendment,  offered  after  the  Georgia  statute  of  limita- 
tions had  run,  set  up  a  liability  conferred  by  the  Ala- 
bama statute  in  terms.  The  facts  alleged  in  both  were 
substantially  alike,  and  the  plaintiff  argued  that  simply 
to  mention  the  Alabama  statute  in  the  amendment,  and 
recite  the  same  facts,  would  not  set  up  a  new  cause  of 
action.  But  the  court  held  that  the  amendment  offered 
did  set  up  a  new  cause  of  action,  and  that  the  trial 
judge  properly  refused  to  allow  the  amendment,  because 
the  cause  of  action  stated  therein  was  barred. 

1  Babcock  v.  Babcock,  46  Mo.  243. 


LIMITATION   OP   ACTIONS.  197 

In  Nashville  &c.  Ry.  v.  Foster,  10  Lea  (Tenn.),  351, 
however,  a  decision  o£  a  contrary  tendency  was  ren- 
dered. A  brakeman  in  the  defendant  railroad's  employ 
was  killed  in  Alabama,  but  the  original  declaration 
counted  on  the  Tennessee  statute  apparently ;  at  least  it 
did  not  state  or  rely  upon  the  Alabama  statute.  After 
the  limitation  period  had  elapsed  an  amendment  was 
allowed  setting  forth  the  Alabama  statute.  It  was  held 
that  the  amendment  did  not  introduce  a  new  cause  of 
action,  and  that  it  related  back  to  the  time  the  action 
was  commenced,  and  prevented  the  bar  from  attaching. 
It  is  possible,  however,  to  distinguish  this  case  from  the 
two  preceding  cases  on  the  ground  that  here  the  liabil- 
ity described,  both  in  the  original  declaration  and  in 
the  amendment,  was  a  special  statutory  liability,  while 
in  the  two  preceding  cases  the  liability  alleged  in  the 
original  declaration  was  a  general  common-law  liability, 
and  that  alleged  in  the  amendment  was  a  special  statu- 
tory liability. 

If,  however,  the  original  declaration  shows  that  the 
plaintiff  relies  upon  the  statute  of  the  State  of  injury, 
and  the  foreign  statute  is  merely  pleaded  in  a  defective 
manner,  he  may  amend  by  setting  out  the  statute  prop- 
erly, and  such  amendment  will  relate  back  to  the  time 
of  bringing  suit.  This  is  not  the  addition  of  a  new 
cause  of  action,  but  is  merely  a  more  correct  statement 
of  the  original  cause,  and  is  therefore  not  barred  unless 
the  original  action  was  barred.1 

A  like  rule  applies  where  the  injury  occurs  in  one 
State,  whose  statute  giving  the  right  of  action  also  limits 

1  South  Carolina  Ry.  v.  Nix,  68  Ga.  572  ;  Bolton  v.  Georgia  Pacific 
Ry.,  83  Ga.  659,  660. 


198  EMPLOYERS'  LIABILITY  ACTS. 

the  time  for  action,  and  the  suit  is  brought  in  another 
State,  without  declaring  upon  the  statute  of  the  State 
of  injury.  In  such  case  the  declaration  cannot  be 
amended  by  adding  a  count  on  the  foreign  statute  after 
the  time  prescribed  by  that  statute  for  bringing  suit  has 
elapsed.1 

§  136.  Do  Exceptions  or  Saving  Clauses  in  the  Gen- 
eral Statute  of  Limitations  apply  to  Actions  under 
the  Employers'  Liability  Acts  ? 

The  Employers'  Liability  Acts  contain  no  exceptions 
or  saving  clauses  allowing  further  time  to  sue,  while  the 
general  statutes  of  limitation  contain  various  clauses 
of  this  nature.  Thus,  the  general  statute  of  Massachu- 
setts gives  minors  and  some  others  further  time  to  sue. 
The  question  therefore  arises,  do  the  usual  saving  clauses 
in  the  general  statute  of  limitations  apply  to  actions 
under  the  Employers'  Liability  A  ct,  when  that  act  itself 
contains  no  saving  clause?  If,  as  in  Alabama,  the 
Employers'  Liability  Act  does  not  prescribe  a  period  of 
limitation,  but  leaves  the  action  subject  to  the  terms  of 
the  general  statute  of  limitations,  it  would  seem  that 
the  exceptions  and  saving  clauses  in  that  statute  would 
also  apply  to  actions  under  the  Employers'  Liability 
Act.2 

Where,  however,  the  Employers'  Liability  Act  sued 
upon  prescribes  a  period  of  limitation  without  any 
saving  clauses,  it  seems  that  the  plaintiff  is  not  entitled 
to  the  benefit  of  a  saving  clause  in  the  general  statute 

1  Selma  &c.  Ry.  v.  Lacy,  49  Ga.  106. 

a  Louisville  &c.  Ry.  v.  Sanders,  86  Ky.  259 ;  Nelson  v.  Galveston  &c. 
Ry.,  78  Tex.  621. 


LIMITATION   OF   ACTIONS.  199 

of  limitations.  Thus,  it  has  been  held  in  Mississippi 
that  an  infant  suing  under  the  Mississippi  act  for  the 
negligent  killing  of  its  father  by  the  defendant  railroad 
company  must  bring  the  action  within  the  year  men- 
tioned in  that  statute,  and  is  not  entitled  to  the  benefit 
of  a  saving  clause  in  the  general  statute  of -limitations 
allowing  infants  who  are  not  represented  by  any 
guardian,  etc.,  further  time  to  sue.1 

It  is  well  settled  that  the  fact  that  a  saving  clause  in 
a  statute  of  limitations  allows  a  new  suit  to  be  br6ught 
within  a  year  after  a  nonsuit,  or  reversal,  etc.,  of  a 
former  suit  which  was  brought  in  time,  does  not  allow 
such  a  second  suit  on  a  policy  of  insurance  which  limits 
the  first  suit  to  one  year  and  makes  no  provision  for  a 
second  suit.2 

§  137.  Conflict  of  Laws. 

In  statutes  of  this  character,  which  create  a  new  legal 
right  unknown  to  the  common  law,  time  is  regarded  as 
of  the  essence  of  the  right.  The  provision,  that  no 
action  shall  be  maintained  unless  brought  within  a 
certain  time  after  the  injury,  is  a  condition  attached 
to  the  right  of  action,  and  it  operates  as  a  limitation  of 
the  liability  as  created,  and  not  merely  of  the  remedy. 
When  the  action  is  brought  after  the  expiration  of  the 
time  limited  it  is  barred,  not  only  in  the  State  of  injury, 

1  Foster  v.  Tazoo  &c.  Ry.  (Miss.),  18  So.  Rep.  380.     See,  also,  Taylor 
P.  Cranberry  Iron  Co.,  94  N.  C.  525  ;  Best  v.  Kinston,  106  N.  C.  205 ; 
Cavanagh  v.  Ocean  Steam  Nav.  Co.,  19  N.  Y.  Civ.  Pro.  391 ;  Hill  v.  Su- 
pervisors, 119  N.  Y.  344. 

2  Riddlesbarger  v.  Hartford  Ins.  Co.,  7  Wall.  386  ;  Wilson  v.  JEtna  Ins. 
Co.,  27  Vt.  99  ;  Hocking  v.  Howard  Ins.  Co.,  130  Pa.  St.  170  ;  Arthur  v. 
Homestead  Ins.  Co.,  78  N.  Y.  462. 


200  EMPLOYERS'  LIABILITY  ACTS. 

but  also  in  other  States  and  in  the  federal  courts.  In 
the  case  of  The  Harrisburg,  119  U.  S.  199,  the  plain- 
tiff's husband  was  killed  in  a  collision  on  navigable 
waters  within  the  jurisdiction  of  Massachusetts  in  1877. 
The  suit,  which  was  in  rem  against  the  negligent  steamer, 
The  Harrisburg  by  name,  was  brought  in  1882,  in  the 
District  Court  of  the  United  States  for  Pennsylvania. 
Both  the  States  of  Massachusetts  and  Pennsylvania 
had  statutes  allowing  actions  for  the  negligent  killing  of 
a  human  being  in  certain  cases,  but  they  both  required 
the  action  to  be  brought  within  one  year  after  the 
injury  in  Massachusetts,  and  within  one  year  after  the 
death  in  Pennsylvania.  It  was  held  that  the  action 
could  not  be  maintained,  for  the  following  reasons, 
stated  by  Mr.  Chief  Justice  Waite  on  page  214  :  — 

"  The  statutes  create  a  new  legal  liability,  with  the 
right  to  a  suit  for  its  enforcement,  provided  the  suit  is 
brought  within  twelve  months,  and  not  otherwise.  The 
time  within  which  the  suit  must  be  brought  operates 
as  a  limitation  of  the  liability  itself  as  created,  and  not 
of  the  remedy  alone.  It  is  a  condition  attached  to  the 
right  to  sue  at  all.  No  one  will  pretend  that  the  suit 
in  Pennsylvania,  or  the  indictment  in  Massachusetts, 
could  be  maintained  if  brought  or  found  after  the 

O 

expiration  of  the  year ;  and  it  would  seem  to  be  clear 
that,  if  the  admiralty  adopts  the  statute  as  a  rule  of 
right  to  be  administered  within  its  own  jurisdiction,  it 
must  take  the  right  subject  to  the  limitations  which 
have  been  made  a  part  of  its  existence.  It  matters  not 
that  no  rights  of  innocent  parties  have  attached  during 
the  delay.  Time  has  been  made  of  the  essence  of  the 
right,  and  the  right  is  lost  if  the  time  is  disregarded. 


LIMITATION   OF   ACTIONS.  201 

The  liability  and  the  remedy  are  created  by  the  same 
statutes,  and  the  limitations  of  the  remedy  are,  there- 
fore, to  be  treated  as  limitations  of  the  right." 

The  fact  that  in  The  Harrisburg,  supra,  the  action 
was  barred  under  the  statute  of  the  State  of  process 
was  immaterial.  The  mere  fact  that  it  was  barred 
under  the  statute  of  the  State  of  injury  was  sufficient 
to  prevent  a  recovery.  Thus,  in  Boyd  v.  Clark,  8  Fed. 
Rep.  849,  a  like  action,  brought  in  a  federal  court 
sitting  in  Michigan  for  an  injury  received  in  Ontario 
after  the  time  limited  by  the  Ontario  statute,  was  held 
to  be  barred,  although  the  time  prescribed  by  the 
Michigan  statute  had  not  elapsed.  In  delivering  the 
court's  opinion,  Mr.  Justice  Brown  says,  on  page  852 : 
"  The  true  rule  I  conceive  to  be  this :  that  where  a 
statute  gives  a  right  of  action  unknown  to  the  common 
law,  and,  either  in  a  proviso  to  the  section  conferring 
the  right  or  in  a  separate  section,  limits  the  time  within 
which  an  action  shall  be  brought,  such  limitation  is  oper- 
ative in  any  jurisdiction  where  the  plaintiff  may  sue." 

§  138.  Same. 

When  the  statute  of  the  State  of  injury  allows  a 
longer  period  for  the  commencement  of  suit  than  is 
allowed  by  the  State  of  process^,  the  same  principle  is 
applied  in  favor  of  the  plaintiff.  That  is,  the  plaintiff 
may  maintain  his  action  if  the  time  limited  by  the 
statute  of  the  State  of  injury  has  not  elapsed,  even  if 

i  See,  also,  Selma  &e.  Ry.  v.  Lacy,  49  Ga.  106  ;  O'Shields  v.  Georgia 
Pacific  Ry.,  83  Ga.  621,  626  ;  Halsey  v.  McLean,  12  Allen  (Mass.), 
438,  443;  Eastwood  v.  Kennedy,  44  Md.  563;  Phillips  v.  Eyre,  L.  R. 
6  Q.  B.  1. 


202  EMPLOYERS'  LIABILITY  ACTS. 

the  time  limited  by  the  statute  of  the  State  of  process 
has  elapsed. 

Thus,  in  Therough  v.  Northern  Pacific  Ry.,  64  Fed. 
Rep.  84,  the  plaintiff's  intestate,  a  locomotive  engineer 
for  defendant,  was  killed  in  Montana  on  October  20, 
1890.  The  Montana  "  Damage  Act"  (Comp.  St.  Mont. 
1887,  §§  981, 982)  allowed  three  years  for  the  bringing 
of  such  an  action.  The  suit,  however,  was  brought  in 
Minnesota,  whose  "  Damage  Act "  allowed  only  two 
years  for  such  suits,  on  October  10,  1893,  —  more  than 
two  years,  but  less  than  three  years,  after  the  injury. 
It  was  held,  by  the  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit,  that  the  action  was  not  barred,  and  that 
it  was  governed  by  the  law  of  Montana,  following  the 
principle  of  Boyd  v.  Clark,  8  Fed.  Rep.  849. 

In  delivering  the  opinion,  Mr.  Justice  Thayer  says, 
on  page  86 :  "  It  must  be  accepted,  therefore,  as  the 
established  doctrine,  that  where  a  statute  confers  a  new 
right,  which  by  the  terms  of  the  act  is  enforcible  by 
suit  only  within  a  given  period,  the  period  allowed  for 
its  enforcement  is  a  constituent  part  of  the  liability 
intended  to  be  created,  and  of  the  right  intended  to  be 
conferred.  The  period  prescribed  for  bringing  suit  in 
such  cases  is  not  like  an  ordinary  statute  of  limitations, 
which  merely  affects  the  remedy.  It  follows,  of  course, 
that  if  the  courts  of  another  State  refuse  to  permit  the 
cause  of  action  to  be  sued  upon  during  a  part  of  the 
period  limited  by  the  foreign  law,  to  that  extent  they 
refuse  to  give  effect  to  the  foreign  law,  and  by  so  doing 
impair  the  right  intended  to  be  created." 


LIMITATION   OF   ACTIONS.  203 

§  139.  Same.  When  Employers'  Liability  Act  does 
not  limit  Time  for  Action. 

The  Alabama  Employers'  Liability  Act  does  not  pre- 
scribe a  definite  time  within  which  an  action  under  it 
must  be  brought.  This  is  regulated  by  the  general 
statute  of  limitations,  which  fixes  the  limitation  upon 
actions  for  "  any  injury  to  the  person  or  rights  of 
another  not  arising  from  contract"  at  one  year.1 

In  Georgia  the  period  for  such  actions  is  two  years. 
In  an  action  brought  in  Georgia  under  the  Alabama 
Employers'  Liability  Act  for  an  injury  received  in 
Alabama,  it  appeared  that  the  action  was  brought 
within  two  years,  but  not  within  one  year,  after  the 
injury.  It  was  held  that  the  action  was  not  barred,  for 
the  reason  that,  as  the  Alabama  Employers'  Liability 
Act  failed  to  prescribe  a  limitation,  the  action  was 
governed  by  the  lex  /on'.2  In  delivering  the  court's 
opinion,  Mr.  Chief  Justice  Bleckley  says,  on  page  625 : 
"  Where  torts  are  committed  in  foreign  countries,  or 
beyond  the  territorial  jurisdiction  of  the  sovereignty  in 
which  the  action  is  brought,  the  lex  fori  governs,  no 
matter  whether  the  right  of  action  depends  upon  the 
common  law  or  a  local  statute,  unless  the  statute  which 
creates  or  confers  the  rio;ht  limits  the  duration  of  such 

O 

right  to  a  prescribed  time." 

It  seems  that  the  parties  must  have  remained  within 
the  jurisdiction  of  the  State  of  injury  for  its  full  period 
of  limitation  in  order  to  bar  the  action  in  another 
State. 

1  Alabama  Code  of  1886,  §  2619,  cl.  6  ;  O'Kief  v.  Memphis  &c.  Ry., 
99  Ala.  524. 

a  O'Shields  v.  Georgia  Pacific  Ry.,  83  Ga.  621. 


204:  EMPLOYERS'  LIABILITY  ACTS. 

In  Canadian  Pacific  Ry.  v.  Johnson,  61  Fed.  Rep. 
738,  decided  by  the  Circuit  Court  of  Appeals  in  1894, 
the  plaintiff,  while  in  the  employ  of  the  defendant,  was 
injured  in  Canada  on  September  6,  1890.  This  action 
was  brought  on  November  6,  1891,  more  than  a  year 
after  the  injury.  By  the  Code  of  Canada  the  right  of 
action  for  such  an  injury  was  "  absolutely  extinguished  " 
in  one  year.  At  the  time  of  the  injury  the  plaintiff  was 
a  citizen  of  Vermont.  From  the  time  of  his  injury  on 
September  6,  1890,  he  remained  in  Canada  until  April, 
1891,  less  than  a  year,  and  then  returned  to  Vermont. 
The  railway  company  was  a  Canadian  corporation.  It 
was  held  that,  even  assuming  the  Canadian  statute  to 
be  one  which  extinguished  a  right  of  action,  the  action 
was  not  barred,  because  the  plaintiff  had  not  remained 
in  Canada  for  the  full  period  of  one  year,  and  therefore 
the  statute  had  not  fully  operated  upon  the  right. 

§  140.  Same.  When  Right  exists  at  Common  Law. 
When  the  right  of  action  does  not  depend  upon 
statute  but  exists  at  common  law,  the  rule  generally 
recognized  is  that  an  action  for  personal  injuries  re- 
ceived without  the  State  of  process,  as  well  as  within 
that  State,  is  governed  by  its  limitation  laws.1 

1  Johnston  v.  Canadian  Pacific  Ry.,  50  Fed.  Rep.  886  ;  Munos  v. 
Southern  Pacific  Ry.,  51  Fed.  Rep.  188  ;  Nonce  v.  Richmond  Co.,  33  Fed. 
Rep.  429  ;  Finnell  v.  Southern  Kans.  Ry.,  33  Fed.  Rep.  427. 


CHAPTER  XI. 


THE    MEASURE    OF   DAMAGES. 


Section 

141.  Injury  not  resulting  in  death. 

142.  Injury  resulting  in  death  pre- 

ceded by  conscious  suffering, 
or  in  death  which  is  not  in- 
stantaneous. 

143.  Injury  resulting  in  instanta- 

neous death,  or  in  death  not 
preceded  by  conscious  suffer- 
ing. 

144.  "Assessed  with  reference   to 

the  degree  of  culpability." 

145.  In  Alabama,  damages  are  lim- 

ited to  the  pecuniary  loss  or 
injury. 

146.  When  deceased  employee  is  a 

minor. 

147.  Age,  health,  strength,  capacity 

to  earn   money,  and  family 


Section 

of  deceased,  as  elements  of 
damage. 

148.  When   the   deceased  leaves  a 

widow  or  dependent  next  of 
kin. 

149.  When  the  deceased  leaves  no 

widow  or  dependent  next  of 
kin. 

150.  Colorado  rules. 

151.  Other  cases. 

152.  Exemplary  or  punitive   dam- 


153.  Excessive  damages  :   how   re- 

duced. 

154.  Division     of    damages     when 

employee's    negligence     has 
contributed  to  his  injury. 

155.  Remote   or   conjectural  dam- 

ages. 


§  141.  Injury  not  resulting  in  Death. 

THE  Massachusetts  statute  limits  the  amount  of 
damages  recoverable  by  an  employee  when  his  injury 
does  not  result  in  death  to  a  sum  not  exceeding  four 
thousand  dollars.1  It  does  not  prescribe  any  criterion 
for  estimating  the  amount,  but  leaves  the  question  to 
be  settled  upon  general  principles  of  law.  By  virtue 
of  the  various  Married  Women's  Acts,  it  has  recently 

1  Mass.  St.  1887,  ch.  270,  §  3. 


206  EMPLOYERS'  LIABILITY  ACTS. 

been  decided  that  the  impairment  of  a  married  woman's 
capacity  to  labor  caused  by  a  personal  injury  is  an 
element  of  damage  in  her  favor,  and  not  in  her  hus- 
band's favor,  and  may  be  considered  by  the  jury  in  an 
action  by  her  against  the  negligent  person.1  The  Col- 
orado statute  declares  that  the  compensation  "  shall 
not  exceed  the  sum  of  five  thousand  dollars." 2 

Where  the  employer  has  contributed  to  an  insurance 
fund  for  the  benefit  of  employees,  the  Massachusetts 
act  further  provides  that  he  "  may  prove,  in  mitigation 
of  the  damages  recoverable  by  an  employee  under  this 
act,  such  proportion  of  the  pecuniary  benefit  which 
has  been  received  by  such  employee  from  any  such 
fund  or  society,  on  account  of  such  contribution  of 
said  employer,  as  the  contribution  of  such  employer  to 
such  fund  or  society  bears  to  the  whole  contribution 
thereto."  3 

The  English  statute  provides  that  "  the  amount  of 
compensation  recoverable  under  this  act  shall  not  exceed 
such  sum  as  may  be  found  to  be  equivalent  to  the  esti- 
mated earnings,  during  the  three  years  preceding  the 
injury,  of  a  person  in  the  same  grade  employed  during 
those  years  in  the  like  employment  and  in  the  district 
in  which  the  workman  is  employed  at  the  time  of  the 
injury."  By  section  5  of  this  act  the  amount  of  any 
penalty  paid  to  the  injured  employee  under  any  other 
statute  is  to  be  deducted  from  the  compensation  recov- 
ered under  the  Employers'  Liability  Act. 

*  Harmon  v.  Old  Colony  Ry.,  165  Mass.  100  ;  42  N.  E.  Rep.  505. 
2  Colo.  Laws  of  1893,  ch,  77,  §  2. 

8  Mass.  St.  1887,  ch.  270,  §  6. 

*  43  &  44  Viet.  cap.  42,  §  3. 


THE   MEASURE   OF   DAMAGES.  207 

The  Alabama  statute  does  not  prescribe  a  limit  to 
the  amount  of  damages  recoverable  in  an  action  under 
the  statute.  In  Mobile  &c.  Ry.  v.  George,  94  Ala.  199, 
a  brakeman  recovered  a  verdict  of  $19,547  for  the 
loss  of  both  feet.  In  the  same  case,  the  court,  by  Mr. 
Justice  Clopton,  says  on  page  222  :  "  Where  the  injury 
is  permanent,  the  plaintiff,  in  actions  of  this  character, 
may  recover  compensation  for  the  disabling  effects  of 
the  injury,  past  and  prospective.  In  estimating  the 
damages,  the  loss  of  time,  and  the  incapacity  to  do  as 
profitable  labor  as  before  the  injury,  as  well  as  the 
mental  and  physical  suffering  caused  by  it,  are  perti- 
nent and  legitimate  factors." * 

§  142.  Injury  resulting  in  Death  preceded  by  Con- 
scious Suffering,  or  in  Death  which  is  not  Instan- 
taneous. 

In  this  case  the  Massachusetts  act,  as  amended  by 
the  statute  of  1892,  ch.  260,  §  1,  provides  that  — 

"  The  total  damages  awarded  hereunder,  both  for 
said  death  and  said  injury,  shall  not  exceed  five  thou- 
sand dollars,  and  shall  be  apportioned  by  the  jury 
between  the  legal  representatives  and  the  persons,  if 
any,  entitled  under  the  succeeding  section  of  this  act 
to  bring  an  action  for  instantaneous  death.  If  there 
are  no  such  persons,  then  no  damages  for  such  death 
shall  be  recovered ;  and  the  damages,  so  far  as  the  same 
are  awarded  for  said  death,  shall  be  assessed  with  ref- 
erence to  the  degree  of  culpability  of  the  employer 
herein,  or  the  person  for  whose  negligence  he  is  made 
liable." 

1  Citing  South  Alabama  Ry.  v.  McLendon,  63  Ala.  266  ;  Alabama  &c. 
,Ry.  v.  Yarbrough,  83  Ala.  238, 241. 


208  EMPLOYERS'  LIABILITY  ACTS. 

Under  the  original  Massachusetts  act  of  1887,  the 
employer  was  liable  in  damages  for  the  conscious  suffer- 
ing of  the  deceased  employee,  but  was  not  liable  in 
addition  thereto  for  his  death  as  a  substantive  cause  of 
action.1  The  amendment  of  1892,  therefore,  intro- 
duced a  new  element  of  damage. 

§  143.  Injury  resulting  in  Instantaneous  Death,  or  in 
Death  not  preceded  by  Conscious  Suffering. 

The  Massachusetts  statute  of  1892,  ch.  260,  §  2, 
provides  that  — 

"  In  case  of  death  which  follows  instantaneously,  or 
without  conscious  suffering,  compensation  in  lieu  thereof 
[of  damages]  may  be  recovered  in  not  less  than  five 
hundred  and  not  more  than  five  thousand  dollars,  to  be 
assessed  with  reference  to  the  degree  of  culpability  of 
the  employer  herein,  or  the  person  for  whose  negligence 
he  is  made  liable." 

Under  a  statute  providing  that  injuries  to  the  person 
shall  survive  to  the  personal  representative,  the  plaintiff 
can  recover  only  such  damages  as  he  proves  were  sus- 
tained by  the  deceased.  A  conjecture  that  he  suffered 
mental  or  other  pain  is  not  sufficient.  Thus,  in  Ken- 
nedy v.  Standard  Sugar  Refinery,  125  Mass.  90,  the 
deceased,  while  engaged  in  wheeling  coal  for  the  defend- 
ant, fell  from  a  platform  twenty  feet  to  the  ground. 
He  immediately  became  unconscious,  and  remained  so 
until  his  death,  thirty-six  hours  afterwards.  It  was  held 
in  an  action  at  common  law  that  his  administratrix 
could  not  recover  damages  for  the  mental  or  other  suf- 
fering endured  by  him  during  the  fall,  because  there 

1  Ramsdell  v.  New  York  &c.  %.,  151  Mass.  245. 


THE   MEASURE   OF   DAMAGES.  209 

was  no  proof  that  he  suffered  during  that  time,  and 
that  the  jury  was  not  warranted  in  inferring  that  he 
suffered. 

§  144.  " Assessed  with  Reference  to  the  Degree  of 
Culpability" 

These  words  indicate  that  there  must  be  some  degree 
of  culpability  on  the  part  of  the  employer,  or  of  the 
person  for  whose  negligence  he  is  made  liable. 

The  same  language  is  used  in  §  212  of  Massachusetts 
Public  Statutes,  ch.  112,  relating  to  the  liability  of 
railroad  corporations  for  an  injury  resulting  in  death. 
Under  this  statute  it  has  been  held  that  a  railroad  is 
not  liable  for  the  defective  condition  of  the  roadbed 
of  a  road  operated  but  not  owned  by  it,  unless  it 
had  notice  of  the  defect,  or  might  have  had  notice 
of  it  by  the  exercise  of  due  care,  because  there  is  no 
culpability  on  its  part.1 

In  reference  to  a  similar  statute  Mr.  Justice  Metcalf 
for  the  court  says  in  Carey  v.  Berkshire  Ry.,  1  Gush. 
475,  480 :  "  And  as  this  penalty  is  to  be  recovered  by 
indictment,2  it  is  doubtless  to  be  greater  or  smaller, 
within  the  prescribed  maximum  and  minimum,  accord- 
ing to  the  degree  of  blame  which  attaches  to  the  defend- 
ants, and  not  according  to  the  loss  sustained  by  the 
widow  and  heirs  of  the  deceased.  The  penalty,  when 
thus  recovered,  is  conferred  on  the  widow  and  heirs, 
not  as  damages  for  their  loss,  but  as  a  gratuity  from 
the  Commonwealth." 

1  Littlejohn  v.  Fitchburg  Ry.,  148  Mass.  478. 

2  The  fact  that  the  penalty  is  recovered  by  indictment  instead  of  by 
a  civil  action  seems  immaterial  upon  the  question  of  the  measure  of 
damages.     Doyle  v.  Fitchburg  Ry.,  162  Mass.  66,  7L 


210  EMPLOYERS'  LIABILITY  ACTS. 

Where  there  is  a  series  of  negligent  acts,  the  earlier 
acts  conducing  to  and  furnishing  occasion  for  the  later 
acts,  the  jury,  in  determining  the  degree  of  culpability 
of  the  defendant  corporation  for  causing  the  death  of 
the  intestate,  is  not  confined  to  a  consideration  of  the 
act  which  immediately  produced  the  death,  but  may 
consider  the  whole  chain  or  series  of  acts,  and  assess 
damages  accordingly.1 

§  145.  In    Alabama,   Damages   are   limited  to   the 
Pecuniary  Loss  or  Injury. 

In  Alabama  the  Employers'  Liability  Act  contains  no 
criterion  for  estimating  damages.  In  case  the  injury 
results  in  death,  the  damages  recovered  are  "distributed 
according  to  the  statute  of  distributions."2  In  such 
case  the  Supreme  Court  has  held  that  the  measure  of 
damages  is  limited  to  the  pecuniary  loss  or  injury  sus- 
tained by  the  person  entitled  to  receive  the  damages, 
and  that  no  damages  can  be  recovered  on  account  of 
the  pain  and  suffering  of  the  deceased,  the  grief  and 
distress  of  his  family,  or  the  loss  of  his  society.3  The 
reason  assigned  by  the  court  in  the  first  case  just  cited 
is  as  follows  :  "  The  theory  of  the  statute  is,  that  those 
for  whom  compensation  is  provided  have  a  pecuniary 
interest  in  the  life  of  the  person  killed,  and  conse- 
quently the  amount  of  the  recovery  is  limited  to  the 
value  of  such  interest." 

In  delivering  the  court's  opinion  in  Louisville  &c. 

1  Kansas  City  &c.  Ry.  v.  Sanders,  98  Ala.  293. 

2  Alabama  Code,  §  2591. 

8  Louisville  &c.  Ry.  v.  Orr,  91  Ala.  548  ;  James  v.  Richmond  &c.  Ry., 
92  Ala.  231. 

4  Per  Coleman,  J.,  p.  552. 


THE   MEASURE   OF   DAMAGES.  211 

Ry.  v.  Or,  91  Ala.  548,  553,  Mr.  Justice  Coleman 
says :  — 

"  The  jury  have  no  arbitrary  discretion  to  give  as 
damages  what  they  may  see  proper,  without  reference 
to  a  proper  basis  from  which  to  estimate  them.  That 
the  jury  may  have  proper  data  from  which  a  pecuniary 
compensation  may  be  fixed,  it  is  proper  to  admit  evi- 
dence of  the  age,  probable  duration  of  life,  habits  of 
industry,  means,  business,  earnings,  health,  skill  of  the 
deceased,  reasonable  future  expectations ;  and  perhaps 
there  are  other  facts  which  should  exert  a  just  influence 
in  determining  the  pecuniary  damage  sustained.  In 
proportion  as  all  the  relevant  facts  and  circumstances  of 
decedent's  condition  are  brought  before  the  jury,  they 
will  be  the  better  prepared  to  ascertain  correct  compen- 
sation. If  none  of  the  facts  and  circumstances,  except 
the  bare  killing  and  age  of  decedent,  are  in  evidence, 
the  verdict  for  other  than  nominal  damages  would  be 
purely  conjectural." 

In  the  later  case  of  James  v.  Richmond  &c.  Ry.,  92 
Ala.  231,  236,  the  court  mentioned  two  additional  ele- 
ments of  damage,  namely,  the  net  income  and  habits  of 
economy  of  the  deceased,  which  were  said  to  be  impor- 
tant factors  in  ascertaining  his  accumulating  capacity.1 

In  the  same  case  it  was  held  that  an  administratrix 
was  entitled  to  recover  substantial  damages  where  it 
appeared  in  evidence  that  the  deceased  was  22  or  23 
years  of  age,  of  good  health,  probable  duration  of  life 
thirty-nine  or  forty  years,  occupation  a  brakeman  on 
a  freight  train,  average  earning  capacity  $30  or 
per  month. 

1  See,  also,  Richmond  &c.  Ry.  v.  Hammond,  93  Ala.  181. 


212  EMPLOYERS'  LIABILITY  ACTS. 

§  146.  When  Deceased  Employee  is  a  Minor. 
In  an  action  under  the  Alabama  act,  for  causing  the 
death  of  a  minor  employee,  his  personal  representative 
is  not  entitled  to  recover  damages  for  the  earnings  of 
the  deceased  during  his  minority,  when  he  lived  with 
and  was  supported  by  his  father  prior  to  his  death.1 
Such  damages  belong  to  the  father,  and  may  be  recov- 
ered by  him  in  a  separate  action,  and  they  should, 
therefore,  be  excluded  by  the  jury  in  estimating  the 
damages  in  an  action  brought  by  his  executor  or  admin- 
istrator.1 

§  147.  Age,  Health,  Strength,  Capacity  to  earn 
Money,  and  Family  of  Deceased,  as  Elements  of 
Damage. 

In  Baltimore  &c.  Ry.  v.  Mackey,  157  U.  S.  72,  an 
inspector  and  repairer  of  cars,  in  the  employ  of  the 
defendant  railroad  company,  was  killed  by  its  negli- 
gence in  the  District  of  Columbia.  The  Act  of  Con- 
gress, approved  February  17,  1885,  ch.  126  (23  Stat. 
307),  provided  that  the  damages  not  exceeding  $10,000 
for  such  death,  "  shall  be  assessed  with  reference  to  the 
injury  resulting  from  such  act,  neglect,  or  default,  caus- 
ing such  death,  to  the  widow  and  next  of  kin  of  such 
deceased  person  ;  "  and  further  provided,  by  section  3, 
"  that  the  damages  recovered  in  such  action  shall  not 
be  appropriated  to  the  payment  of  the  debts  or  liabili- 
ties of  such  deceased  person,  but  shall  inure  to  the  bene- 
fit of  his  or  her  family,  and  be  distributed  according  to 

1  Alabama  Coal  Co.  v.  Pitts,  98  Ala.  285  ;  Williams  v.  South  &  North 
Alabama  Ry.,  91  Ala.  636. 


THE  MEASUKE  OF  DAMAGES.         213 

the  provisions  of  the  statute  of  distributions  in  force  in 
the  said  District  of  Columbia."  In  delivering  the  opin- 
ion of  the  court,  Mr.  Justice  Harlan  says,  on  page  93 : 
"  Under  such  a  statute,  it  is  entirely  proper  that  the 
jury  should  take  into  consideration  the  age  of  the 
deceased,  his  health,  strength,  capacity  to  earn  money, 
and  family.  The  injury  done  to  a  family  consisting  of 
a  widow  and  helpless  young  children,  who  depended  for 
support  entirely  upon  the  labor  of  a  husband  and  father 
whose  death  was  caused  by  the  wrongful  act  of  others, 
is  much  greater  than  would  be  done  to  any  'next  of 
kin '  able  to  maintain  themselves,  and  who  have  never 
depended,  and  had  no  right  to  depend,  upon  the  labor 
or  exertions  of  the  deceased  for  their  maintenance." 

The  case  was  distinguished  from  that  of  Pennsylva- 
nia Co.  v.  Roy,  102  U.  S.  451,  in  which  a  person  was 
injured  but  not  killed,  and  in  which  it  was  held  that 
his  poverty,  and  the  number  and  ages  of  his  children, 
were  not  proper  elements  of  damage. 

§  148.    When   the  Deceased   leaves   a   Widow    or 
Dependent  Next  of  Kin. 

If  the  employee's  death  was  not  instantaneous,  but 
was  preceded  by  conscious  suffering,  and  he  leaves  a 
widow  or  dependent  next  of  kin,  his  legal  represen- 
tative, under  the  Massachusetts  act  as  amended,  may 
recover  damages,  not  exceeding  $5,000,  both  for  his 
pain  and  suffering,  and  also  for  the  death  itself  as  a 
substantive  cause  of  action.  The  jury  is  empowered 
in  such  an  action  by  the  executor  or  administrator  to 
apportion  the  damages  between  him  and  the  widow  or 
dependent  next  of  kin  ;  and  it  is  further  provided  that 


214  EMPLOYERS'  LIABILITY  ACTS. 

"  the  damages,  so  far  as  the  same  are  awarded  for  said 
death,  shall  be  assessed  with  reference  to  the  degree  of 
culpability  of  the  employer  herein,  or  the  person  for 
whose  negligence  he  is  made  liable."  J 

If  the  employee  is  instantly  killed,  or  dies  without 
conscious  suffering,  his  widow  or  dependent  next  of 
kin,  under  the  Massachusetts  statute,  may  recover  dam- 
ages "  in  the  same  manner,  to  the  same  extent,  as  if  the 
death  of  the  deceased  had  not  been  instantaneous,  or 
as  if  the  deceased  had  consciously  suffered." 2 

In  Louisville  &c.  Ry.  v.  Trammell,  93  Ala.  350,  the 
court,  by  Mr.  Justice  McClellan,  says  on  page  354 : 
"  The  measure  of  damages,  in  all  cases  where  suit  is 
for  injuries  causing  the  death  of  an  employee,  is  the 
pecuniary  value  of  the  life  of  the  employee  to  his  next 
of  kin,  resulting  either  from  a  relation  of  dependency, 
or  from  expectation  of  benefit  from  the  distribution  of 
such  estate  as  it  may  be  inferred  from  the  evidence  he 
would  have  earned  and  saved  but  for  untimely  death." 
In  the  same  case  it  appeared  that  the  probable  dura- 
tion of  life  of  the  deceased  was  twenty-seven  years ; 
that  his  earning  capacity  was  $3QO  per  year ;  that  he 
saved  nothing ;  and  that  he  left  a  widow  only  and  no 
children.  It  was  held  that  the  measure  of  damages 
was  such  a  sum  as,  if  put  at  legal  interest,  would  yield 
the  widow  an  annual  income  of  $150  for  twenty-seven 
years,  and  exhaust  the  principal  at  the  end  of  that 
period.3  This  sum  the  court  determined  to  be  approx- 

1  Mass.  St.  1892,  ch.  260,  §  1. 

2  Mass.  St.  1887,  ch.  270,  §  2. 

8  It  would  seem  that  one  element  of  damages  should  be,  at  least  in 
the  case  of  a  young  man,  his  prospective  increase  in  earning  and  saving 
capacity.  The  case  cited  above  fails  to  recognize  this  consideration.  In 


THE   MEASURE   OF   DAMAGES.  215 

imately  $1,650 ;  and  the  case  having  been  tried  without 
a  jury  in  the  lower  court,  the  Supreme  Court,  under 
its  power  to  render  such  judgment  as  the  trial  court 
should  have  rendered,  reduced  the  judgment  from 
$2,500  to  $1,650. 

In  Bromley  v.  Birmingham  Ry.,  95  Ala.  397,  it  was 
held  that  the  fact  that  the  deceased  employee  left  sur- 
viving him  a  wife  and  minor  child  dependent  upon  him 
for  support,  without  proof  that  he  expended  his  earn- 
ings wholly  or  in  part  upon  them  or  for  their  benefit, 
cannot  affect  the  measure  of  damages  or  strengthen 
the  right  of  recovery.  "  Where  the  relation  of  depend- 
ency exists,  and  the  proof  shows  expenditure  for  their 
benefit,  the  measure  of  recovery  as  affected  by  this 
proof  is  declared  in  the  case  of  Louisville  &c.  Ry.  v. 
Trammell,  93  Ala.  350.  If  the  income  exceed  the  out- 
lay, so  that  there  is  a  regular  accumulation  in  excess 
of  consumption,  the  rule  is  declared  in  McAdory  v. 
Louisville  &c.  Ry.,  94  Ala.  272." 1 

Fanners'  Loan  Co.  v.  Toledo  &c.  Ry.,  67  Fed.  Rep.  73,  "the  increased 
earning  capacity  that  would  come  with  additional  experience  "  was  recog- 
nized by  the  special  master  as  a  proper  element  of  damage  in  the  case 
of  an  employee  of  the  age  of  thirty  years  who  was  killed  through  the 
defendant's  negligence.  Page  81.  Although  Ricks,  J.,  reduced  the  mas- 
ter's finding  from  $11,606  to  $10,000,  he  did  it  for  the  reason  that  the 
legislatures  of  a  large  number  of  States  have  fixed  $10,000  as  the  max- 
imum limit  in  case  of  death  by  wrongful  act,  and  not  on  the  ground 
that  an  employee's  probable  increase  in  earning  capacity  was  an  improper 
element  of  damage. 

1  Per  Coleman,  J.,  for  the  court,  p.  406. 


216  EMPLOYEES'  LIABILITY  ACTS. 

§  149.    When   the  Deceased  leaves  No   Widow  or 
Dependent  Next  of  Kin. 

In  Massachusetts,  if  there  was  conscious  suffering  on 
the  part  of  the  deceased  employee,  and  he  leaves  no 
widow  or  dependent  next  of  kin,  no  damages  for  the 
death  itself  can  be  recovered  under  the  Employers' 
Liability  Act ; a  but  the  executor  or  administrator  may 
recover  damages  for  his  mental  and  physical  suffering, 
as  assets  of  the  estate.2 

If  the  death  was  instantaneous,  or  without  conscious 
suffering,  the  measure  of  damages  is  "  not  less  than 
five  hundred  and  not  more  than  five  thousand  dollars, 
to  be  assessed  with  reference  to  the  degree  of  culpa- 
bility of  the  employer  herein,  or  the  person  for  whose 
negligence  he  is  made" liable."3 

In  Alabama,  where  the  deceased  employee  leaves  no 
next  of  kin  entitled  to  inherit  under  the  statute  of 
distributions,  only  nominal  damages  can  be  recovered 
under  the  Employers'  Liability  Act.  In  a  suit  by  the 
personal  representative,  however,  he  need  not  allege  or 
prove  that  the  deceased  left  next  of  kin,  as  the  want  of 
next  of  kin  is  merely  matter  of  defence.4 

In  the  case  of  McAdory  v.  Louisville  &c.  Ry.,  94 
Ala.  272,  there  were  net  earnings,  or  savings,  but  no 
relation  of  dependence.  The  deceased  was  a  switchman 
on  a  railroad,  at  a  monthly  salary  of  $66.66 ;  age,  21 
years ;  unmarried ;  sober  and  healthy,  and  of  indus- 

1  Mass.  St.  1892,  ch.  260,  §  1. 

3  Ramsdell  v.  New  York  &c.  Ry.,  151  Mass.  245. 
«  Mass.  St.  1892,  §  2. 

4  James  v.  Richmond  &c.  Ry.,  92  Ala.  231. 


THE   MEASURE   OF   DAMAGES.  217 

trious  and  economical  habits ;  expectancy  of  life,  about 
forty,  years.  It  was  held,  in  an  action  by  his  personal 
representative  under  the  Employers'  Liability  Act,  that 
the  true  measure  of  damages  was  not  the  aggregate 
amount  of  his  net  earnings  during  the  probable  dura- 
tion of  his  life,  estimated  on  the  basis  of  his  health, 
ability  to  labor,  habits  of  sobriety,  industry,  and  econ- 
omy, gross  annual  earnings  and  expenditures,  but  such 
a  sum  as,  estimated  on  that  basis,  with  legal  interest 
added,  would  aggregate  that  amount,  calculated  by  the 
American  mortuary  tables.  A  verdict  for  the  plaintiff 
for  $9,395.95  having  been  set  aside  by  the  trial  judge 
as  excessive,  the  Supreme  Court  held  that  such  action 
was  proper  and  affirmed  the  judgment,  without  attempt- 
ing to  fix  the  amount  of  damages,  as  it  might  have 
done  if  the  trial  had  been  without  a  jury.1  The  rule 
announced  by  the  Supreme  Court  of  Texas,  in  Hous- 
ton &c.  Ry.  v.  Cowser,  57  Texas,  293,  304,  is  quoted 
with  approval  on  page  276,  namely :  "  Perhaps  the 
nearest  measure  of  damages  approximating  this  rea- 
sonable certainty  would  be  such  sum  as  would  purchase 
an  annuity  if  such  security  was  in  the  market,  equal 
to  the  value  of  the  pecuniary  aid  which  the  plaintiff 
would  have  derived  from  the  deceased,  calculated  upon 
the  basis  of  all  the  facts  and  circumstances  of  the 
particular  case  reasonably  accessible  in  evidence,  and 
including  the  probable  duration  of  life,  as  shown  by 
the  approved  tables." 

In  an  action  under  the  Alabama  Employers'  Liability 
Act,  it  was  held  that  the  fact  that  the  deceased  employee 
was  suffering  from  pulmonary  disease  at  the  time  of  his 

1  Louisville  &c.  Ry.  r.  Trammell,  93  Ala.  350. 


218  EMPLOYERS'  LIABILITY  ACTS. 

injury  is  admissible  in  evidence  for  the  defendant,  as 
affecting  his  probable  continuance  in  life.1 

§  150.  Colorado  Rules. 

In  an  action  under  the  Colorado  act  of  1877,  giving 
a  right  of  action  for  death  caused  by  negligence,  the 
measure  of  damages  has  been  thus  described  by  the 
Supreme  Court  of  Colorado  in  Pierce  v.  Conners,  20 
Colo.  178,  182 ;  37  Pac.  Rep.  721,  722 :  "  The  true 
measure  of  compensatory  relief  in  actions  of  this  kind, 
under  the  act  of  1877,  supra,  is  a  sum  equal  to  the  net 
pecuniary  benefit  which  plaintiff  might  reasonably  have 
expected  to  receive  from  the  deceased  in  case  his  life 
had  not  been  terminated  by  the  wrongful  act,  neglect, 
or  default  of  the  defendant.  Such  sum  will  depend 
on  a  variety  of  circumstances  and  future  contingencies, 
and  will  therefore  be  difficult  of  exact  ascertainment ; 
but  the  damages  to  be  awarded  in  each  case  may  be 
approximated  by  considering  the  age,  health,  condi- 
tion in  life,  habits  of  industry  or  otherwise,  ability  to 
earn  money,  on  the  part  of  the  deceased,  including  his 
or  her  disposition  to  aid  or  assist  the  plaintiff.  Not 
only  the  kinship  or  legal  relation  between  the  deceased 
and  the  plaintiff,  but  the  actual  relations  between  them, 
as  manifested  by  acts  of  pecuniary  assistance  rendered 
by  the  deceased  to  the  plaintiff,  and  also  contrary  acts, 
may  be  taken  into  consideration." 2 

1  Columbus  &c.  Ry.  v.  Bridges,  86  Ala.  448. 

2  See,  also,  Moffatt  v.  Tenney,  17  Colo.  189 ;  Hayes  v.  Williams,  17 
«Colo.  465,  468  ;  Denver  &c.  Ry.  v.  Wilson,  12  Colo.  20. 


THE   MEASURE   OF   DAMAGES.  219 

§  151.  Other  Cases. 

For  other  cases  involving  the  measure  of  damages 
for  injuries  resulting  in  death,  in  actions  brought  under 
the  American  prototypes  of  Lord  Campbell's  Act,  see 
the  cases  cited  in  the  note.1 

§  152.  Exemplary  or  Punitive  Damages. 

In  Alabama  it  has  been  decided,  in  an  action  under 
its  Employers'  Liability  Act,  that  such  damages  are  not 
recoverable  where  the  injury  results  in  death.2  The 
statute  does  not  limit  the  amount  of  damages  recover- 
able, and  the  measure  of  damages  is  determined  upon 
common-law  principles.  Even  when  the  negligence  of 
the  defendant  or  of  his  employees  is  so  gross  or  wanton 
as  to  overcome  the  defence  of  contributory  negligence, 
no  damages  beyond  the  point  of  compensation  can  be 
recovered  by  the  personal  representative.3 

Whether  a  like  rule  applies  when  the  injury  does  not 
result  in  death,  and  the  injured  employee  himself  brings 
the  action,  seems  to  be  doubtful.4 

In  a  case  at  common  law  decided  in  1879  it  was  held 
that  exemplary  or  punitive  damages  were  recoverable 
for  personal  injuries  caused  by  negligence,  if  the  negli- 
gence was  gross;  and  that  the  degree  of  negligence 

1  Railroad  Co.  v.  Barren,  5  Wall.  90  ;  Chicago  &c.  Ry.  v.  Harwood,  88 
El.  88  ;  Huntingdon  &c.  Ry.  v.  Decker,  84  Pa.  419  ;  Kesler  v.  Smith,  66 
N.  C.  154  ;  Telfer  v.  Northern  Ry.,  30  N.  J.  L.  188. 

2  Louisville  &c.  Ry.  v.  Orr,  91  Ala.  548  ;  Columbus  &c.  Ry.  v.  Bridges, 
86  Ala.  448. 

»  Louisville  &c.  Ry.  v.  Trammell,  93  Ala.  350. 
*  Seaboard  Manuf.  Co.  ».  Woodson,  98  Ala.  378. 


220  EMPLOYERS'  LIABILITY  ACTS. 

is  a  question  for  the  jury  to  determine,  under  proper 
instructions  from  the  court.1 

In  Massachusetts  exemplary  and  vindictive  damages 
are  probably  not  recoverable.2 

In  Connecticut  it  has  been  held,  in  an  action  under 
a  statute  resembling  Lord  Campbell's  Act,  that  such 
damages  are  recoverable.3 

§  153.  Excessive  Damages :  how  reduced. 

Under  the  Massachusetts  practice,  the  presiding 
judge,  when  the  damages  awarded  by  the  jury  appear 
to  him  to  be  excessive,  "  may  either  grant  a  new  trial 
absolutely,  or  give  the  plaintiff  the  option  to  remit  the 
excess,  or  a  portion  thereof,  and  order  the  verdict  to 
stand  for  the  residue." 4  A  like  rule  prevails  in  Ala- 
bama and  generally  elsewhere.5 

A  verdict  of  $5,000  is  not  excessive  where  the  em- 
ployee at  the  time  of  his  injury  was  forty-seven  years 
old  and  earning  fifty  dollars  a  month,  and  suffered  a 
painful  fracture  of  the  ankle,  which  his  physician  testi- 
fied would  probably  result  in  a  permanent  disability.6 

When  the  trial  is  without  a  jury,  the  Supreme  Court 
of  Alabama  sitting  in  bane  has  the  power  to  reduce  the 
damages  found  by  the  trial  judge,  if  they  appear  to  be 

1  South  Alabama  Ry.  v.  McLendon,  63  Ala.  266.     See,  also,  Barbour 
County  v.  Horn,  48  Ala.  566  ;  Mobile  &c.  Ry.  v.  Ashcraft,  48  Ala.  15. 

2  Higgins  v.  Central  New  England  Ry.,  155  Mass.  176,  181  ;  Barnard 
v.  Poor,  21  Pick.  378  ;  Austin  v.  Wilson,  4  Cush.  273. 

8  Linsley  v.  Bushnell,  15  Conn.  225  ;  Beecher  v.  Derby  Bridge  Co.,  24 
Conn.  491,  497  ;  Murphy  v.  New  York  &c.  Ry.,  29  Conn.  496. 

4  Doyle  v.  Dixon,  97  Mass.  208,  213,  per  Gray,  J.  ;  Lambert  v.  Craig, 
12  Pick.  199  ;  Blunt  v.  Little,  3  Mason,  102,  107. 

6  Stephenson  v.  Mansony,  4  Ala.  317. 

6  Richmond  &c.  Ry.  v.  Farmer,  97  Ala.  141. 


THE   MEASURE   OF   DAMAGES.  221 

excessive,  and  to  enter  judgment  for  the  reduced  amount 
without  granting  a  new  trial,  and  without  a  remitter  by 
the  plaintiff.1 

§  154.  Division  of  Damages  when  Employee's  Negli- 
gence has  contributed  to  his  Injury. 

In  the  admiralty  courts,  where  an  employee  is  injured 
on  board  ship  through  a  marine  tort  arising  partly 
from  the  negligence  of  the  ship's  officers  and  partly 
from  his  own  negligence,  the  fact  that  his  own  negli- 
gence contributed  to  his  injury  does  not  prevent  a 
recovery,  —  it  only  causes  a  division  of  damages  and  a 
reduction  in  the  amount  recoverable.2 

In  the  common-law  courts,  however,  contributory 
negligence  on  the  part  of  an  employee  will  prevent 
a  recovery  of  any  damages,  even  when  the  injury 
occurred  on  board  ship  partly  through  the  negligence 
of  its  officers.3  But  the  mere  fact  that  the  plaintiff 
aggravates  his  injury  after  it  is  received  by  his  negli- 
gent conduct  will  not  prevent  him  from  recovering  for 
the  original  injury  inflicted  by  the  defendant's  negli- 
gence.4 

1  Louisville  &c.  Ry.  v.  Trammell,  93  Ala.  350. 

2  The  Max  Morris,  137  U.  S.  1  ;  The  Julia  Fowler,  49  Fed.  Rep.  277. 

8  Kalleck  v.  Deering,  161  Mass.  469,  472.  That  contributory  neg- 
ligence prevents  a  recovery  under  the  Employers'  Liability  Acts,  see 
§§  113-122. 

*  Hibbard  v.  Thompson,  109  Mass.  286  ;  Owens  v.  Baltimore  &c.  Ry., 
35  Fed.  Rep.  715  ;  Gould  v.  McKenna,  86  Pa.  St.  297  ;  Hathorn  v.  Rich- 
mond, 48  Vt.  557. 


222  EMPLOYEES'  LIABILITY  ACTS. 

§  155.  Remote  or  Conjectural  Damages. 
Under  the  Alabama  statute  for  the  death  of  a  minor 
employee,  it  has  been  decided  that  the  probability  of 
his  marrying  and  having  children,  if  he  had  lived,  is 
too  remote  and  conjectural  to  be  considered  by  the 
jury  in  estimating  the  amount  of  recovery.1 

Tennessee  Coal  Co.  v.  Herndon,  100  Ala.  451. 


CHAPTER  XII. 


DIRECTING   A    NONSUIT    OB    VERDICT    FOR    DEFENDANT. 


I.  Defendant's  Negligence. 


Section 

156.  Subdivisions    of   subject    and 

preliminary  remarks. 

157.  Is  mere  happening  of  accident 

prima  facie  evidence  of  neg- 
ligence? (1)  Actions  by  non- 
employees  at  common  law. 

158.  Same.    (2)  Common-law  rule 

in  actions  by  employees. 

159.  Slight  evidence  sufficient,  but 

not  mere  scintilla. 

160.  Automatic     starting     of    ma- 

chinery. 

161.  Inference 

when  he 
dence. 


against    defendant 
introduces  no  evi- 


Section 

162.  What  amounts  to  a  "  defensive 

explanation  "  of  the  injury. 

163.  Actions  under  Employers'  Lia- 

bility Acts.  Subdivisions  of 
subject. 

164.  (a)  Defects  in  the  ways,  works, 

machinery,  or  plant. 

165.  Same. 

166.  (ft)  Negligence  of  a  superin- 

tendent. 

167.  Same. 

168.  (c)  Negligence  of  a  person  in 

charge  or  control  of  any  sig- 
nal, switch,  locomotive  en- 
gine, or  train  upon  a  railroad. 

169.  Same. 


§  156.   Subdivisions   of  Subject    and    Preliminary 
Remarks. 

ONE  of  the  most  difficult  questions  relating  to  suits 
under  Employers'  Liability  Acts  is,  What  evidence  is 
or  is  not  sufficient  to  entitle  the  plaintiff  to  go  to  the 
jury  ?  or,  in  other  words,  What  evidence  will  or  will  not 
authorize  the  trial  judge  in  nonsuiting  the  plaintiff,  or 
in  directing  the  jury  to  return  a  verdict  for  the  defend- 
ant ?  This  question  will  be  discussed  under  the  follow- 
ing subdivisions :  -• — 


224  EMPLOYERS'  LIABILITY  ACTS. 

I.  Defendant's  Negligence. 
II.  Plaintiff's  Contributory  Negligence.1 
HI.  Assumption  of  Risk,  and  Volenti  nonfit  Injurla? 

In  Gardner  v.  Michigan  Central  Ry.,  150  U.  S.  349, 
361,  Mr.  Chief  Justice  Fuller,  speaking  for  the  court, 
says :  "  The  question  of  negligence  is  one  of  law  for 
the  court  only  where  the  facts  are  such  that  all  reason- 
able men  must  draw  the  same  conclusion  from  them,  or, 
in  other  words,  a  case  should  not  be  withdrawn  from 
the  jury  unless  the  conclusion  follows,  as  matter  of  law, 
that  no  recovery  can  be  had  upon  any  view  which  can 
be  properly  taken  of  the  facts  the  evidence  tends  to 
establish."  3 

"  It  is  not  a  question  of  the  weight  of  evidence,  or 
whether  the  verdict  ought  not  to  be  set  aside  on  a 
motion  for  a  new  trial.  When  the  question  is  raised 
by  exceptions,  the  only  inquiry  is,  whether  there  is  any 
evidence  proper  to  submit  to  the  jury  as  having  a 
tendency  to  support  the  legal  propositions  which  charge 
the  defendant  with  liability."  4  "  The  first  inquiry  is 
whether  there  was  any  evidence  on  behalf  of  the  plain- 
tiff upon  which  the  jury  could  legally  have  found  a 
verdict  in  his  favor.  If  there  was,  the  question  of  its 
weight  or  value  cannot  be  considered  by  us." 5 

1  Ch.  xiii.  §§  170-173,  post. 

2  Ch.  xiv.  §§  174-190,  post. 

8  See,  also,  Baltimore  &c.  Ry.  v.  Mackey,  157  U.  S.  72  ;  Grand  Trunk 
Ry.  v.  Ives,  144  U.  S.  408,  417,  and  cases  cited  ;  Hall  v.  Posey,  79  Ala. 
84  ;  Pennsylvania  Ry.  v .  Ogier,  35  Pa.  St.  60  ;  Gaynor  v.  Old  Colony 
Ry.,  100  Mass.  208,  212  ;  Marietta  &c.  Ry.  v.  Picksley,  24  Ohio  St. 
654  ;  Jamison  v.  San  Jose'  &c.  Ry.,  55  Cal.  593. 

*  Ford  v.  Fitchburg  Ry.,  110  Mass.  240,  260,  per  Colt,  J.,  for  the  court, 
citing  Forsyth  v.  Hooper,  11  Allen,  419. 

5  Taylor  v.  Carew  Manuf.  Co.,  140  Mass.  150,  151,  per  Devens,  J., 
citing  Heywood  v.  Stiles,  124  Mass.  275. 


DIRECTING  VERDICT   FOR  DEFENDANT.  225 

In  Louisville  &c.  Ry.  v.  Allen,  78  Ala.  494,  502, 
Mr.  Justice  Somerville,  in  delivering  the  opinion,  says : 
"The  question  of  negligence  is  one  of  fact  for  the 
determination  of  the  jury  in  cases  of  doubt,  either 
where  the  facts  are  disputed  or  where  different  minds 
may  reasonably  draw  different  inferences  or  conclusions. 
It  is  a  question  of  law,  however,  to  be  decided  by  the 
court,  where  the  facts  are  undisputed  and  the  inference 
to  be  drawn  from  them  is  clear  and  certain.1  The 
court  will,  accordingly,  give  a  general  charge  on  the 
evidence  when  requested,  where  the  evidence  bearing 
on  the  question  of  negligence  vel  non  is  such  as  that 
the  court  would  feel  authorized  to  sustain  a  demurrer 
to  it."  2 

Where  the  evidence  is  conflicting,  the  circumstance 
that  the  presiding  justice  is  clearly  of  the  belief  that 
the  question  should  be  decided  in  one  way  does  not 
justify  him  in  directing  a  verdict  for  the  party  in  whose 
favor  that  belief  operates,  though  it  would  justify  him 
in  granting  a  new  trial  if  the  jury  found  for  the  other 
party.3 

The  circumstance  that  the  facts  of  the  case  are  undis- 
puted is  not  always  sufficient  to  justify  the  presiding 
judge  in  withdrawing  the  case  from  the  jury  and 
directing  a  verdict  for  one  of  the  parties.  In  an  action 
for  negligence  causing  personal  injury,  the  question 
whether  either  or  both  of  the  parties  are  at  fault  is  for 
the  jury,  unless  the  general  knowledge  and  experience 

1  Citing  Montgomery  v.  Wright,  72  Ala.  411. 

2  Citing  Smoot  v.  Mobile  &c.  Ry.,  67  Ala.  13. 

a  Chambliss  v.  Mary  Lee  Coal  Co.,  103  Ala.  000  ;  16  So.  Rep.  572. 


226  EMPLOYERS'  LIABILITY  ACTS. 

of  men  at  once  condemn  the  conduct  of  one  of  them  as 
careless,  or  there  is  no  evidence  of  negligence.1 

§  157.  Is  Mere  Happening  of  Accident  Prima  Facie 
^Evidence  of  Negligence?  (1)  Actions  by  Non- 
employees  at  Common  Law. 

In  actions  by  travellers  and  others  who  are  not 
employees  of  the  defendant,  it  has  been  repeatedly 
decided  that  proof  that  the  plaintiff  was  injured  on  the 
defendant's  premises,  or  by  some  cause  originating  on 
his  premises,  is,  in  the  absence  of  a  defensive  expla- 
nation, sufficient  prima  facie  evidence  of  defendant's 
negligence  to  entitle  the  plaintiff  to  go  to  the  jury.2 
The  grounds  of  these  decisions  are  that  the  defendant 
is  liable  to  such  persons  for  the  negligence  of  his 
employees  as  well  as  for  that  of  himself ;  and  that,  as 
the  premises  are  under  the  exclusive  management  and 
control  of  the  defendant  or  his  employees,  the  injury  is 
more  naturally  to  be  attributed  to  his  or  their  acts 

1  Kerrigan  v.  West  End  Ry.,  158  Mass.  305  ;  Lane  v.  Atlantic  Works, 
107  Mass.  104. 

2  Feital  v.  Middlesex  Ry.,  109  Mass.  398  ;  White  v.  Boston  &  Albany 
Ry.,  144  Mass.  404  ;  Thomas  v.  Western  Union  Telegraph  Co.,  100  Mass. 
156  ;  Hicks  i;.  New  York  &c.  Ry.,  164  Mass.  424  ;  Howser  v.  Cumberland 
&c.  Ry.,  80  Md.  146  ;  s.  c.,  27  L.  R.  A.  154  ;  Stokes  v.  Saltonstall,  13 
Peters,  181  ;  Gleeson  v.  Virginia  Midland  Ry.,  140  U.  S.  435  ;  Rose  v. 
Stephens  Transportation  Co.,  11  Fed.  Rep.  438  ;  Judson  v.  Giant  Powder 
Co.,  107  Cal.  549  ;  40  Pac.  Rep.  1020  ;  Dixon  v.  Pluns,  98  Cal.  384  ;  Volk- 
mar  v.  Manhattan  Ry.,  134  N.  Y.  418  ;  Mullen  v.  St.  John,  57  N.  Y.  567  ; 
Cummings  v.  National  Furnace  Co.,  60  Wis.  603  ;  Kirst  v.  Milwaukee 
&c.  Ry.,  46  Wis.  489  ;  Iron  Ry.  v.  Mowery,  36  Ohio  St.  418  ;  Ryder  v. 
Kinsey,  59  Minn.  000  ;  64  N.  W.  Rep.  94  ;  Scott  v.  London  Docks  Co.,  3 
H.  &  C.  596  ;  Carpue  v.  London  &c.  Ry.,  5  Q.  B.  747  ;  Kearney  v.  Lon- 
don &c.  Ry.,  L.  R.  6  Q.  B.  759.     Contra,  Walker  v.  Chicago   &c.  Ry.,  71 
Iowa,  658. 


DIRECTING    VERDICT    FOR   DEFENDANT.  227 

than  to  the  act  of  a  stranger,  and  his  means  or  sources 
of  knowledge  are  superior  to  those  of  the  plaintiff. 
Unless,  therefore,  the  defendant  explains  the  accident 
by  proof  that  it  was  caused  by  a  stranger  or  by  some 
other  cause  for  which  he  is  not  responsible,  the  plaintiff 
is  entitled  to  go  to  the  jury,  and  a  verdict  in  his  favor 
will  stand. 

Although  this  rule  modifies  the  rule  relating  to  the 
burden  of  proof,  it  does  not  cast  the  burden  on  the 
defendant :  the  plaintiff  still  retains  the  burden  of 
showing  that  the  defendant's  negligence  caused  his 
injury.  Such  evidence,  however,  on  the  part  of  the 
plaintiff  is  not  conclusive  in  his  favor,  nor  is  he  entitled 
to  a  ruling  to  that  effect.  It  should  be  taken  into  con- 
sideration by  the  jury  and  allowed  such  weight  only  as 
they  think  reasonable.  Hence,  if  they  return  a  verdict 
for  the  defendant,  it  will  not  be  set  aside  because  the 
presiding  judge  refused  to  rule  that  it  was  conclusive 
evidence,  or  that  it  changed  the  burden  of  proof.1 

It  has  been  decided  by  the  courts  of  some  jurisdic- 
tions that  this  presumption  of  negligence  arises  only 
when  there  is  a  contractual  relation  between  the  plain- 
tiff and  the  defendant,  such  as  that  of  passenger  and 
carrier,  and  that  the  doctrine  does  not  apply  to  persons 
in  other  relations.2  The  better  view,  however,  seems  to 
be  that  the  existence  of  such  contractual  relation  is  not 
essential,  and  that  the  presumption  arises  without  it.3 

1  Le  Barren  v.  East  Boston  Ferry  Co.,  11  Allen,  312. 

2  Huff  v.  Austin,  46  Ohio  St.  386  ;  Young  v.  Bransford,  12  Lea  (Tenn.), 
232. 

8  Judson  v.  Giant  Powder  Co.,  107  Cal.  549  ;  40  Pac.  Rep.  1020  ;  Rose 
v.  Stephens  Transportation  Co.,  11  Fed.  Rep.  438  ;  and  other  cases  cited 
above  under  the  main  proposition. 


228  EMPLOYEES'  LIABILITY  ACTS. 

§  158.  Same.     (2)  Common-Law  Rule  in  Actions  by 
Employees. 

This  rule,  however,  does  not  apply  to  actions  between 
employee  and  employer  for  personal  injuries  founded 
on  negligence.  As  between  these  two  classes  of  per- 
sons, it  cannot  be  affirmed  that  the  employer  has  the 
exclusive  management  or  control  of  the  premises,  or 
that  his  means  or  sources  of  knowledge  are  superior  to 
those  of  the  employee ;  and  it  is  well  settled  that  the 
common  employer  is  not  liable  to  one  employee  for  the 
negligence  of  a  fellow-servant.  It  is,  therefore,  gen- 
erally settled  at  common  law  that  unless  an  employee 
shows  more  than  that  he  was  injured  while  lawfully 
engaged  on  his  employer's  work  or  premises,  he  is  not 
entitled  to  go  to  the  jury  on  the  question  of  defendant's 
negligence,  and  that  a  verdict  should  be  directed  for 
the  defendant.1 

In  the  case  of  Ouillette  v.  Overman  Wheel  Co.,  162 
Mass.  306,  the  plaintiff,  while  standing  in  his  place  on 
the  floor  of  defendant's  factory,  was  injured  by  the  fall- 
ing upon  him  of  shafting  and  pulleys  fastened  to  beams 
overhead  by  two  hangers.  He  contended,  and  intro- 
duced evidence  tending  to  show,  that  the  shaft  and  the 
machinery  connected  with  it,  and  its  method  of  attach- 
ment to  the  floor  above,  were  improper  and  insecure, 
and  that  the  defendant  ought  to  have  known  their 
unsafe  condition.  At  the  trial  the  defendant  requested 

1  Reed  v.  Boston  &  Albany  Ry.,  164  Mass.  129  ;  Duffy  v.  Upton,  113 
Mass.  544  ;  Nason  v.  West,  78  Me.  253  ;  Toledo  &c.  Ry.  v.  Moore,  77 
111.  217  ;  Hudson  v.  Rome  &c.  Ry.,  145  N.  Y.  408  ;  40  N.  E.  Rep.  8  ; 
Mobile  &c.  Ry.  v.  Thomas,  42  Ala.  672  ;  Louisville  &c.  Ry.  v.  Allen,  78 
Ala.  494 ;  Short  ».  New  Orleans  &c.  Ry.,  69  Miss.  848  ;  13  So.  Rep.  826. 


DIEECTING   VEEDICT   FOR   DEFENDANT.  229 

the  judge  to  rule  that  "  no  burden  rests  on  the  defend- 
ant to  show  or  explain  the  cause  of  the  accident."  In 
his  charge  to  the  jury  the  justice  stated,  on  page  309, 
"  that  under  some  circumstances  the  plaintiff's  injury 
from  the  breaking  of  the  defendant's  machinery,  espe- 
cially where  the  means  of  explanation  are  more  likely 
to  be  within  the  control  of  the  defendant  than  of  the 
plaintiff,  is  itself  evidence  of  negligence.  The  breaking 
of  the  machinery,  in  connection  with  a  failure  on  the 
part  of  one  who  presumably  can  explain  to  give  expla- 
nation, may  be  evidence  of  want  of  care  in  providing  it. 
But  this  principle  has  no  application  to  this  case.  The 
injury,  though  caused  by  the  breaking  of  the  defend- 
ant's machinery,  is  not  in  itself  evidence  that  the 
defendant  was  wanting  in  due  care  to  provide  a  reason- 
ably safe  place  for  the  plaintiff  to  do  his  work  in." 

The  jury  returned  a  verdict  for  the  plaintiff  and  the 
defendant  excepted.  The  full  court  overruled  this 
exception,  on  the  ground  that  the  instruction,  that 
under  the  circumstances  of  the  case  the  breaking  of  the 
machinery  was  no  evidence  of  negligence  on  the  defend- 
ant's part,  was  more  favorable  to  the  defendant  than 
the  ruling  requested  by  it  that  the  defendant  was  not 
bound  to  explain  the  cause  of  the  accident. 

There  are,  however,  some  cases  of  a  contrary  tend- 
ency. In  Barnowsky  v.  Helson,  89  Mich.  523,  it  was 
held  that  the  falling  of  a  roof  of  a  building  which  the 
defendant  was  engaged  in  raising,  by  which  the  plain- 
tiff's intestate,  while  in  the  employ  of  the  defendant, 
was  killed,  raised  a  presumption  of  negligence  on  the 
defendant's  part  which  entitled  the  plaintiff  to  go  to 
the  jury,  in  the  absence  of  a  defensive  explanation  by 


230  EMPLOYEES'  LIABILITY  ACTS. 

the  defendant  showing  that  the  roof  fell  without  his 
fault.  The  evidence  for  the  plaintiff  tended  to  show 
that  while  the  roof  was  being  raised  by  the  defendant 
under  a  contract  with  the  owner  of  the  building,  by 
means  of  jack-screws  placed  upon  boxes  made  for  that 
purpose,  it  suddenly  slipped  or  tipped  away  from  the 
braces,  and  fell  upon  the  deceased,  who  was  working 
upon  one  of  the  walls  of  the  building.  In  delivering 
the  court's  opinion,  Mr.  Justice  Morse  says,  on  pages 
524,  525  :  "  In  this  case  the  falling  of  the  roof  was  in 
and  of  itself  some  evidence  that  the  work  of  raising  it 
was  not  being  done  with  the  ordinary  care  and  skill. 
It  is  true  that  the  mere  fact  of  an  injury  does  not 
impute  negligence  on  the  part  of  any  one ;  but  where  a 
thing  happens  which  would  not  ordinarily  have  occurred 
if  due  care  had  been  used,  the  fact  of  such  happening 
raises  a  presumption  of  negligence  in  some  one.  For 
instance,  if  the  waU  of  a  building  falls  down  and  injures 
a  person  walking  along  the  street  or  standing  beside 
the  building,  the  clear  presumption  is  that  the  building 
was  either  negligently  built,  or  that  it  was  not  kept  in 
a  reasonably  safe  condition  after  it  was  erected,  since 
buildings  properly  constructed  do  not  ordinarily  fall  of 
their  own  weight.1  In  the  present  case  it  must  be 
apparent,  and  within  the  knowledge  of  every  one,  that  a 
roof  of  this  kind  could  be  raised  safely,  and  without 
falling,  if  such  raising  were  done  with  proper  care  and 
caution,  and  by  one  having  the  necessary  skill  and 
experience  to  manage  the  work.' 


"2 


1  This  point  was  decided  in  Mullen  v.  St.  John,  57  N.  Y.  567. 
8  This  case  is  also  reported,  with  note  giving  many  decisions,  in  15  L. 
K.  A.  33. 


DIRECTING   VEEDICT   FOR   DEFENDANT.  231 

In  Mulcairns  v.  Janesville,  67  Wis.  24,  it  was  held 
that,  in  an  action  against  a  city  by  one  of  its  employees, 
the  fact  that- the  wall  of  a  cistern,  which  was  in  course 
of  construction  by  the  city,  fell  by  its  own  weight,  or 
through  the  pressure  of  earth  and  gravel  behind  it 
placed  there  by  the  city,  and  injured  the  plaintiff  while 
he  was  working  upon  it,  raised  a  presumption  of  negli- 
gence on  the  part  of  the  defendant.1 

§  159.  Slight  Evidence  Sufficient,  but  not  Mere  Scin- 
tilla. 

At  the  same  time,  it  requires  but  little  additional  evi- 
dence on  the  part  of  the  employee  to  turn  the  scale  in 
his  favor  and  to  warrant  a  verdict  for  him,  on  the 
ground  that  the  employer  was  negligent. 

In  Toy  v.  United  States  Cartridge  Co.,  159  Mass. 
313,  the  plaintiff,  while  in  the  defendant's  employ,  was 
injured  by  the  breaking  of  a  punch  in  a  cartridge 
machine  which  she  was  operating.  She  testified  that 
the  second  hand  had  put  in  a  new  punch,  because  she 
had  complained  of  the  old  one  as  scratching ;  that  the 
second  time  she  used  the  new  one  it  burst  and  caused 
her  injuries ;  that,  before  she  started  the  machine,  she 
saw  a  small  black  mark  that  extended  half-way  round 
the  punch  about  in  the  middle  of  it ;  and  that  "  she  did 
not  know  what  this  black  mark  meant,  but  that  it 
looked  like  a  knitting-needle  that  had  gone  rusty  and 
black."  The  foreman  and  the  second  hand  testified 
that  they  saw  nothing  the  matter  with  the  punch.  It 
was  held  that  there  was  sufficient  evidence  of  negligence 

1  See,  also,  Posey  v.  Scoville,  10  Fed.  Rep.  140  ;  Grimsley  v.  Hankins, 
46  Fed.  Rep.  400. 


232  EMPLOYERS'  LIABILITY  ACTS. 

to  warrant  a  verdict  for  the  plaintiff,  and  that  the  case 
should  have  been  submitted  to  the  jury.1 

In  Graham  v.  Badger,  164  Mass.  42;  s.  c.,  41  N.  E. 
Rep.  61,  the  plaintiff,  while  in  the  defendant's  employ, 
was  injured  by  an  iron  block  falling  upon  him  from  a 
derrick.  The  fall  of  the  block  was  due  to  the  breaking 
of  a  rope  at  a  point  where  it  had  been  spliced.  The 
weight  attached  to  the  rope  was  not  sufficient  to  break 
or  to  endanger  the  apparatus  if  it  had  been  in  proper 
condition.  The  defendant's  evidence,  if  believed  by 
the  jury,  tended  to  show  that  the  breaking  of  the  rope 
was  due  to  its  kinking  and  being  caught  in  a  wheel. 
At  the  trial  the  defendant  requested  the  judge  to  rule 
that  the  mere  breaking  of  the  rope  was  not  prima  facie 
evidence  of  negligence  on  the  defendant's  part.  The 
judge  refused  to  rule  as  requested,  and  instead  instructed 
the  jury  that,  if  they  found  that  the  rope  was  defective 
while  in  the  defendant's  care,  that  fact  was  evidence 
which,  unexplained,  would  warrant  them  in  finding  that 
the  defendant  was  negligent.  It  was  held  that  the 
refusal  to  rule  as  requested  by  the  defendant,  and  the 
ruling  given,  were  both  correct ;  that  the  jury  were  not 
bound  to  believe  the  explanation  offered  by  the  defence 
if  it  seemed  to  them  incredible,  and  that  a  verdict  for 
the  plaintiff  was  warranted  by  the  evidence ;  that  the 
jury  might  infer  from  the  breaking  of  the  rope  that 
it  had  not  been  spliced  properly,  and  that  this  defect 
might  have  been  discovered  by  proper  inspection,  and 
that  the  court  could  not  say  that  the  defect  was  latent 
or  hidden.  Although  the  declaration  in  this  case  con- 

1  Other  cases  to  the  same  effect  are  :  Moynihan  v.  Hills  Co.,  146  Mass. 
586  ;  Spicer  v.  South  Boston  Iron  Co.,  138  Mass.  426. 


DIRECTING   VERDICT   FOR  DEFENDANT.  233 

tains  counts  under  the  Employers'  Liability  Act,  the 
reasoning  of  the  court  seems  to  be  confined  to  the  com- 
mon-law count. 

On  the  other  hand,  a  mere  scintilla  of  evidence  of 
negligence  on  the  defendant's  part  is  not  sufficient  to 
entitle  the  plaintiff  to  go  to  the  jury,  either  at  common 
law1  or  under  the  Employers'  Liability  Act,2  and  it  may 
be  so  controlled  by  the  defendant's  evidence  as  to  jus- 
tify an  instruction  to  find  for  the  defendant.  This  is 
especially  true  when  there  is  no  evidence  to  connect 
the  defendant's  negligence  with  the  injury  for  which 
suit  is  brought.3 

In  Hudson  v.  Rome  &c.  Ry.,  145  N.  Y.  408,  a  fire- 
man of  a  locomotive  was  killed  by  the  scorching  and 
consequent  collapse,  during  a  trip,  of  the  crown-sheet  of 
the  locomotive.  His  administrator  brought  this  suit 
against  the  employer,  claiming  that  the  scorching  had 
taken  place  at  some  time  previous  to  the  trip,  and  that 
defendant  was  negligent  in  sending  the  engine  out  on 
the  road  in  that  condition.  The  only  evidence  which 
tended  to  support  this  view  was  the  testimony  of  the 
engineer,  who  stated  that  he  had  kept  the  crown-sheet 
covered  with  water  throughout  the  trip,  and  that  it  had 
two  full  gauges  of  water  over  it  but  a  few  minutes 
before  the  accident.  Two  experts  testified  for  the 
defendant  that  in  their  opinion,  based  on  an  examina- 
tion of  the  parts  of  the  locomotive  after  the  accident, 

1  Hudson  v.  Rome  &c.  Ry.,  145  N.  Y.  408  ;  40  N.  E.  Rep.  8  ;  Nason 
v.  West,  78  Me.  253. 

2  Shea  v.  Wellington,  163  Mass.  364  ;    Ross  v.  Pearson  Cordage  Co., 
164  Mass.  257 ;  41  N.  E.  Rep.  284  ;  Louisville  &c.  Ry.  v.  Binion,  98 
Ala.  570  ;  Tuck  v.  Louisville  &c.  Ry.,  98  Ala.  150. 

3  Wakelin  v.  London  &c.  Ry.,  12  App.  Cases,  41. 


234  EMPLOYERS'  LIABILITY  ACTS. 

the  scorching  was  done  at  or  very  near  the  time  of  the 
collapse,  and  that  it  was  caused  by  the  crown-sheet  not 
being  properly  covered  with  water.  It  was  the  duty  of 
the  engineer  to  keep  the  crown-sheet  covered  with  water 
during  the  trip.  It  was  held,  reversing  26  N.  Y.  Supp. 
386,  that  the  evidence  was  not  sufficient  to  warrant  a 
verdict  for  the  plaintiff ;  that  the  evidence  of  defend- 
ant's negligence  was  a  mere  scintilla,  which  was  con- 
trolled by  the  defendant's  experts. 

§  160.  Automatic  Starting  of  Machinery. 

In  the  case  of  injuries  caused  by  the  automatic  start- 
ing of  machinery  while  the  plaintiff  is  engaged  in  his 
ordinary  duties,  only  slight  evidence  of  a  defect,  or  of 
the  employer's  negligence,  is  necessary  to  establish  a 
prima  facie  case.  In  Donahue  v.  Drown,  154  Mass. 
21,  the  plaintiff,  while  cleaning  a  machine  at  rest,  that 
being  part  of  her  duty,  was  injured  by  its  automatic 
startingf.  "  There  was  evidence  that  the  machine  was 

O 

not  put  up  properly ;  that  the  driving-pulley  upon  the 
main  shaft  had  a  convex  surface,  instead  of  a  flat  sur- 
face such  as  it  should  have  had,  and  was  so  fixed  with 
reference  to  the  fixed  pulley  that  the  tendency  was  to 
draw  the  belt  from  the  loose  pulley  when  the  machine 
was  not  in  motion  on  to  the  fixed  pulley,  and  thus  to 
start  the  machine."  1  It  also  appeared  that  the  machine 
in  question,  as  well  as  others  in  the  defendant's  fac- 
tory, had  previously  started  automatically.  It  was  held 
that  such  evidence  would  warrant  a  finding  of  the 
defendant's  negligence. 

1  This  statement  of  facts  is  taken  from  the  court's  opinion  by  Lathrop, 
J.,  in  Ross  v.  Pearson  Cordage  Co.,  164  Mass.  257,  262. 


BISECTING   VERDICT   FOR  DEFENDANT.  235 

In  Mooney  v.  Connecticut  River  Lumber  Co.,  154 
Mass.  407,  the  plaintiff  was  injured  by  the  automatic 
starting  of  a  carriage  connected  with  a  sa wing-machine 
in  the  defendant's  mill.  The  carriage  was  run  by  steam 
up  and  down  a  track.  It  was  undisputed  that  a  machine 
which  would  so  start  was  improperly  constructed  or 
adjusted,  and  was  unsafe.  Three  days  before  the  acci- 
dent the  machine  had  started  in  the  same  manner  when 
no  one  was  near  it.  The  defendant's  foreman  knew 
this  fact,  as  well  as  the  plaintiff,  and  the  foreman  told 
the  plaintiff  that  it  had  been  repaired,  and  it  had 
worked  perfectly  afterwards  up  to  the  time  of  the 
accident.  It  was  held  that  the  plaintiff  was  entitled 
to  go  to  the  jury  on  the  question  of  the  defendant's 
negligence.1 

The  fact,  however,  that  the  machine  is  not  supplied 
with  a  safety  appliance,  which  would  have  prevented  its 
automatic  starting,  although  coupled  with  expert  testi- 
mony that  the  machine  was  dangerous  without  such 
safety  appliance,  will  not  require  its  submission  to  the 
jury,  either  at  common  law  or  under  the  Employers' 
Liability  Act. 

In  Ross  v.  Pearson  Cordage  Co.,  164  Mass.  257 ;  41 
N.  E.  Rep.  284,  the  plaintiff,  while  engaged  in  cleaning 
a  machine  known  as  a  drawing-frame,  which  was  then 
at  rest,  had  her  hand  caught  in  its  cog-wheels  by  its 
automatic  starting.  The  machine  was  of  the  ordinary 
construction,  and  was  started  and  stopped  by  a  belt- 
shipper,  used  to  throw  the  driving-belt  from  the  loose 
pulley  to  the  tight  pulley  to  start  the  machine,  and  the 
reverse  to  stop  it.  The  machine  required  two  persons 

1  See,  also,  Connors  v.  Durite  Manuf.  Co.,  156  Mass.  163. 


236  EMPLOYEES'  LIABILITY  ACTS. 

to  operate  it,  one  at  the  shipper  end  and  one  at  the 
opposite  end  of  the  machine.  The  shipper  was  about 
two  feet  long,  with  nothing  to  hold  it  in  place  except 
that  it  was  pivoted  in  the  centre.  The  plaintiff's  expert 
testified  that  a  machine  operated  in  that  manner  by  two 
persons  had  some  special  danger,  which  rendered  it 
necessary  to  have  the  shifting-bar  latched  or  locked,  in 
order  to  prevent  the  belt  from  running  from  the  loose 
on  to  the  tight  pulley  and  starting  the  machine.  There 
was  no  latch  or  lock  on  the  shifting-bar,  and  the 
plaintiff  contended  that  the  absence  of  such  a  safety 
appliance  was  a  defect  in  the  condition  of  the  defend- 
ant's machinery  which  entitled  her  to  go  to  the  jury 
either  on  her  common-law  or  statutory  count ;  but  the 
court  held  the  contrary. 

In  delivering  the  opinion,  Mr.  Justice  Lathrop  says, 
on  page  262  :  "  The  machine  was  in  the  same  condition 
at  the  time  of  the  accident  as  it  was  when  the  plaintiff 
entered  the  defendant's  employ.  There  is  no  evidence 
that  there  was  any  defect  in  it,  or  that  it  differed  from 
similar  machines  in  use  elsewhere.  The  mere  fact  that 
certain  contrivances,  if  on  the  machine,  might  have 
prevented  its  starting,  is  not  enough  to  charge  the 
defendant ;  and  we  see  no  evidence  to  warrant  the  jury 
in  finding  that  there  was  any  breach  of  duty  on  the 
part  of  the  defendant." 

In  Dingley  v.  Star  Knitting  Co.,  134  N.  Y.  552,  a 
boy  fifteen  years  of  age  was  injured  by  the  automatic 
starting  of  a  carding-machine.  It  had  started  in  the 
same  way  three  times  previously,  but  no  defect  in  the 
machine  was  pointed  out  in  the  evidence  at  the  trial. 
It  was  held  by  four  justices  (two  justices  dissenting) 


DIRECTING   VERDICT   FOR   DEFENDANT.  237 

that  the  evidence  would  not  warrant  a  finding  of  neg- 
ligence on  defendant's  part,  and  that  a  nonsuit  was 
properly  ordered. 

§  161.  Inference  against  Defendant  when  he  intro- 
duces No  Evidence. 

This  rule  applies  with  greater  force  when  the  defend- 
ant does  not  introduce  any  evidence  respecting  the 
cause  of  the  accident.  In  such  case  the  jury  is  entitled 
to  draw  an  inference  against  the  defendant.  Thus,  in 
a  leading  Massachusetts  case,  Griffin  v.  Boston  &  Albany 
Ry.,  148  Mass.  143,  a  night-watchman  in  the  defend- 
ant's employ  was  kiUed  by  the  rear  part  of  a  freight 
train,  which  had  separated  into  two  parts  before  it 
reached  his  station.  The  only  evidence  tending  to 
show  negligence  of  the  defendant  was  that  the  coupling- 
link  between  the  two  cars  which  separated  had  spread 
or  opened  sufficiently  wide  to  allow  the  coupling-pin  to 
come  out.  The  defendant  offered  no  evidence  what- 
ever. It  was  held  that,  in  the  absence  of  a  defensive 
explanation  respecting  the  cause  of  the  injury,  the 
evidence  established  a  prima  facie  case  of  negligence 
which  would  warrant  a  verdict  in  favor  of  the  plain- 
tiff.1 In  delivering  the  court's  opinion,  Mr.  Justice 
Charles  Allen  says,  on  page  147  :  — 

"  The  separation  of  a  train  in  consequence  of  the 
spreading  of  a  link,  where  nothing  further  appears,  is 
more  naturally  to  be  attributed  to  an  imperfection  or 
defect  in  the  link  than  to  any  other  cause.  Ordinarily, 
such  separation  would  not  happen  if  the  link  was  sound 

1  See,  also,  to  the  same  effect,  Guthrie  v.  Maine  Central  Ry.,  81  Me. 
572. 


238  EMPLOYERS'  LIABILITY  ACTS. 

and  suitable  for  use.  If  the  link  was  not  sound  and 
suitable  for  use,  the  fact  of  its  being  used  in  that  connec- 
tion properly  calls  for  explanation  from  the  defendant; 
and  if,  under  such  circumstances,  the  defendant  fails  to 
put  in  any  evidence,  some  inference  against  it  may  be 
drawn  therefrom.  The  fact  may  be  susceptible  of  an 
explanation  sufficient  to  exonerate  the  defendant.  But, 
in  the  absence  of  such  explanation,  we  think  the  jury 
might  properly  infer  negligence  on  the  part  of  the 
defendant." 

§  162.  What  amounts  to  a" Defensive  Explanation" 
of  the  Injury. 

A  "  defensive  explanation  "  of  the  injury  means  an 
explanation  founded  upon  a  cause  for  which  the  defend- 
ant is  not  responsible  to  the  plaintiff. 

Joy  v.  Winnisimmet  Co.,  114  Mass.  63,  presents  an 
illustration  of  a  "  defensive  explanation  "  respecting  the 
cause  of  the  injury.  The  plaintiff  was  a  passenger  on 
a  ferry-boat  owned  by  the  defendant,  and  was  injured 
while  leaving  the  boat  by  being  crushed  between  the 
boat  and  the  landing-slip.  The  plaintiff's  evidence 
showed  that  a  chain  used  to  prevent  the  passengers 
from  leaving  the  boat  before  it  was  fastened  to  the  slip 
had  been  removed  before  it  was  so  fastened ;  but  his 
evidence  did  not  show  that  any  of  the  defendant's  ser- 
vants had  removed  the  chain,  unless  the  fact  that  the 
chain  had  been  removed  when  he  attempted  to  leave 
the  boat  was  evidence  of  that  fact.  It  also  appeared 
that  about  fifty  persons  had  pressed  forward  and  left 
the  boat  in  advance  of  the  plaintiff.  On  behalf  of  the 
defendant,  the  servant  whose  duty  it  was  to  fasten  the 


DIRECTING   VERDICT   FOR   DEFENDANT.  239 

boat  and  remove  the  chain  testified,  without  contra- 
diction, that  at  the  time  of  the  accident  he  had  not 
finished  securing  the  boat,  and  had  not  removed  the 
chain.  It  was  held  that  the  evidence  would  not  war- 
rant a  finding  of  negligence  on  defendant's  part,  and 
that  the  plaintiff  was  not  entitled  to  go  to  the  jury. 

If  the  undisputed  evidence  shows  that  the  injury  was 
caused  by  a  latent  defect,  which  could  not  have  been 
discovered  and  remedied  by  ordinary  care  and  inspec- 
tion, this  will  constitute  a  defensive  explanation  and 
rebut  the  presumption  of  negligence,  and  warrant  an 
instruction  to  find  for  the  defendant. 

In  Ryder  v.  Kinsey,  59  Minn.  000 ;  64  N.  W.  Rep. 
94,  the  plaintiff,  while  walking  along  a  public  street  in 
the  city  of  St.  Paul,  was  injured  by  the  fall  of  a  wall 
of  a  small  building  owned  by  the  defendant.  The 
building  had  been  bought  by  the  defendant  after  its 
construction,  and  there  was  nothing  in  its  external 
appearance  to  indicate  a  defective  condition.  After 
the  wall  fell,  it  was  discovered  that  it  had  not  been 
"  anchored,"  or  supported  in  the  manner  usual  in  the 
case  of  such  veneered  brick  walls,  and  this  was  the 
cause  of  its  fall.  It  was  held  that  this  was  a  latent 
defect  in  the  wall  which  could  not  have  been  discovered 
by  ordinary  care ;  that  such  undisputed  evidence  fur- 
nished an  explanation  respecting  the  cause  of  the  wall's 
falling,  and  justified  a  direction  to  return  a  verdict  for 
the  defendant.1 

In  Griffin  v.  Boston  &  Albany  Ry.,  148  Mass.  143, 
the  facts  of  which  are  stated  in  §  161  above,  it  was 
held  that  if  a  fellow-servant  had  caused  the  separation 

1  See,  also,  Louisville  &c.  Ry.  v.  Campbell,  97  Ala.  147. 


240  EMPLOYERS'  LIABILITY  ACTS. 

of  the  train  by  pulling  the  coupling-pin,  or  if  its  sep- 
aration had  been  caused  by  any  other  matter  for  which 
the  defendant  was  not  responsible  to  the  plaintiff,  this 
would  have  constituted  a  defensive  explanation  which 
would  have  justified  an  instruction  to  find  for  the 
defendant. 

The  jury  are,  of  course,  not  bound  to  believe  the 
explanation  offered  by  the  defendant,  and  therefore,  if 
it  be  disputed  by  the  plaintiff,  the  question  should  be 
submitted  to  the  jury  with  proper  instructions,  and 
should  not  be  withdrawn  from  them.1 

§  163.    Actions   under   Employers1   Liability   Acts. 
Subdivisions  of  Subject. 

This  subject  will  be  discussed  under  three  subdi- 
visions, as  follows :  — 

(a)  Defects  in  the  ways,  works,  machinery,  or  plant ; 

(b)  Negligence  of  a  superintendent ; 

(c)  Negligence  of  a  person  in  charge  or  control  of 

any  signal,  switch,  locomotive  engine,  or  train 
upon  a  railroad. 

§  164.  (a)  Defects  in  the  Ways,  Works,  Machinery, 

or  Plant. 

In  Bowers  v.  Connecticut  River  Ry.,  162  Mass.  312, 
a  freight  brakeman  was  injured  while  attempting  to 
couple  two  foreign  cars  then  in  use  by  the  defendant 
railroad.  The  defect  complained  of  was  too  much 
lateral  motion  or  play  of  the  draw-bars,  which  allowed 
one  draw-bar  to  slip  out  of  place  and  by  the  other 

1  Graham  v.  Badger,  164  Mass.  42 ;  41  N.  E.  Rep.  61  ;  Volkmar  v. 
Manhattan  Ry.,  134  N.  Y.  418. 


DIRECTING   VERDICT   FOR   DEFENDANT.  241 

draw-bar,  which  defect  had  not  been  discovered  or 
remedied  owing  to  the  negligence  of  the  defendant's 
car-inspector.  One  witness  for  the  plaintiff  testified 
that  there  was  "  all  of  four  inches'  "  play  in  the  draw- 
bar of  one  of  the  cars,  and  "  not  quite  so  much  play  " 
in  the  draw-bar  of  the  other  car,  and  that  there  ought 
not  to  be  over  an  inch  play  in  the  draw-bars.  Car- 
inspectors  were  furnished  by  the  defendant  at  the  sta- 
tion where  the  injury  occurred.  Under  the  first  count, 
which  was  at  common  law,  it  was  held  that  a  verdict 
was  properly  ordered  for  the  defendant,  because  there 
was  no  sufficient  evidence  that  the  defendant  had  failed 
to  make  proper  provision  for  the  inspection  of  foreign 
cars,  and  the  negligence  in  not  discovering  the  defect, 
if  any,  was  that  of  a  fellow-servant,  the  defendant's 
common-law  duty  being  merely  that  of  inspection.1 
With  respect  to  the  second  count,  however,  which  was 
under  the  Employers'  Liability  Act,  for  a  defect  in  the 
condition  of  the  ways,  works,  or  machinery,  etc.,  it 
was  held  that  the  plaintiff  was  entitled  to  go  to  the 
jury;  that  the  cars,  though  not  owned  by  the  defend- 
ant, must  be  deemed  a  part  of  its  works  and  machinery 
within  the  meaning  of  the  act,  and  that  there  was 
sufficient  evidence  of  a  defect  therein,2  and  of  negli- 
gence on  the  part  of  the  car-inspector  in  failing  to  dis- 
cover or  remedy  the  defect,  to  warrant  a  verdict  for 
the  plaintiff. 

In  Kansas  City  &c.  Ry.  v.  Webb,  97  Ala.  157,  a 

1  Mackin  v.  Boston  &  Albany  Ry.,  135  Mass.  201. 

2  The  draw-bar  of  a  locomotive  engine,  if  placed  too  low,  may  be  a 
defect  which  will  render  an  employer  liable   to   an  employee  even  at 
common  law.     Lawless  v.  Connecticut  River  Ry.,  136  Mass.  1. 


242  EMPLOYERS'  LIABILITY  ACTS. 

locomotive  jumped  the  track  and  injured  the  engineer. 
The  plaintiff's  evidence  tended  to  show  that  two  defects 
in  the  track  had  existed  for  some  weeks  before  the 
accident,  to  the  knowledge  of  the  road-master  and  sec- 
tion foreman,  and  that  they  had  failed  to  remedy  them : 
first,  that  a  split  rail  which  had  formed  part  of  a 
switch  had  been  allowed  to  remain  after  the  use  of 
the  switch  had  been  discontinued,  and  that  this  rail 
had  been  insecurely  fastened,  and  had  become  loose  and 
out  of  line  with  the  succeeding  rail ;  second,  that  in 
constructing  the  curve  where  the  accident  happened, 
which  was  on  a  scale  of  fourteen  degrees,  the  outer  rail 
was  not  sufficiently  raised  above  the  inner  rail.  In  an 
action  under  the  Employers'  Liability  Act,  it  was  held 
that  the  plaintiff  was  entitled  to  go  to  the  jury,  and 
that  a  finding  of  negligence  on  the  part  of  the  defend- 
ant railroad  was  warranted  by  the  evidence. 

The  mere  fact,  however,  that  a  car-brake  sticks 
does  not  constitute  a  defect  in  its  condition  within  the 
Alabama  statute,  nor  entitle  the  plaintiff  to  go  to  the 
jury.  In  Louisville  &c.  Ry.  v.  Binion,  98  Ala.  570,  a 
freight  brakeman,  while  making  a  third  attempt  to  let 
off  a  sticking  brake,  was  thrown  between  the  moving 
cars  and  injured.  He  had  himself  set  the  brake  a 
short  time  before  the  accident.  There  being  no  other 
evidence  that  the  brake  was  defective,  it  was  held  that 
an  action  under  the  Employers'  Liability  Act  could  not 
be  maintained,  and  that  the  presiding  justice  should 
have  given  the  general  affirmative  charge  for  the  de- 
fendant. 

Nor  does  the  fact  that  a  brakeman  was  injured 
through  the  breaking  of  the  brake-rod  of  a  railroad  car 


DIRECTING   VERDICT   FOR   DEFENDANT.  243 

constitute  sufficient  evidence  of  negligence  to  require 
the  submission  of  the  case  to  the  jury,  even  when  half 
of  the  break  was  an  old  and  rusty  break,  if  it  was  so 
situated  under  the  car  as  to  form  a  hidden  defect 
which  could  not  be  discovered  upon  careful  inspection.1 

§  165.  Same. 

In  Allen  v.  Smith  Iron  Co.,  160  Mass.  557,  an 
employee  was  killed  by  the  breaking  of  a  wooden  lever, 
which  was  being  used  to  raise  an  iron  door,  which 
formed  half  the  bottom  of  a  cylindrical  furnace.  In 
an  action  under  the  Employers'  Liability  Act  by  his 
administratrix,  it  appeared  that  the  lever  had  been 
in  use  for  a  long  time,  but  was  not  specially  worn  at 
the  point  of  strain,  and  the  plaintiff  claimed  that  she 
was  entitled  to  go  to  the  jury  on  the  ground  that  the 
defendant  failed  to  furnish  a  proper  lever.  It  was 
held  that  a  verdict  should  have  been  directed  for  the 
defendant.  In  delivering  the  opinion  of  the  court, 
Mr.  Justice  Holmes  says,  on  page  558 :  "  In  the  first 
place,  there  is  no  evidence  that  the  stick  [lever]  was 
defective  except  that  it  broke,  and  none  that  it  appeared 
to  be  defective,  or  could  have  been  discovered  to  be 
so.  It  had  been  in  use  for  a  long  time,  but  was  not 
specially  worn  at  the  point  of  strain.  It  would  not 
have  been  permissible  for  the  jury  to  find  that  the  stick 
ought  to  have  been  known  to  be  defective  because  of 
its  age  alone." 

In  Tuck  v.  Louisville  &c.  Ry.,  98  Ala.  150,  an  action 
under  the  Alabama  statute,  a  freight  brakeman  was 
killed  while  in  the  discharge  of  his  duties.  The  plain- 

1  Louisville  &c.  Ry.  v.  Campbell,  97  Ala.  147. 


244  EMPLOYERS'  LIABILITY  ACTS. 

tiff's  evidence  showed  that  after  the  freight  train  had 
proceeded  eighty  miles  it  separated  into  two  parts  by 
reason  of  a  tail  -  bolt,  which  held  the  cars  together, 
drawing  out.  It  was  held  that  the  fact  that  the  train 
separated  under  these  circumstances  was  not  sufficient 
evidence  of  a  defect  in  the  condition  of  the  machinery 
of  the  defendant  to  entitle  the  plaintiff  to  go  to  the 
jury,  and  that  a  verdict  was  properly  ordered  for  the 
defendant. 

In  Richmond  &c.  Ry.  v.  Weems,  97  Ala.  270,  the 
plaintiff,  while  engaged  in  working  a  derrick,  was 
injured  by  the  breaking  of  the  gudgeon-pin  which 
fastened  the  arms  of  the  derrick  to  the  mast.  The  pin 
was  a  comparatively  new  one,  and  was  made  of  steel. 
The  plaintiff's  evidence  tended  to  show  that  the  pin 
was  too  small  and  should  have  been  made  of  iron,  and 
contended  that  it  constituted  a  defect  in  the  defend- 
ant's machinery,  and  that  it  was  unsafe  and  unfit  for 
the  purpose  for  which  it  was  intended  and  used.  The 
defendant's  evidence  was  of  a  contrary  tendency.  It 
was  held  that  the  question  of  defendant's  negligence 
in  furnishing  such  a  pin  was  one  for  the  jury,  and 
that  the  affirmative  charge  to  find  for  the  defendant 
was  properly  refused. 

In  Bivins  v.  Georgia  Pacific  Ry.,  96  Ala.  325,  a 
freight  brakeinan,  while  attempting  to  board  his  train 
in  motion  after  setting  a  switch,  caught  his  clothes  on 
the  switch-handle,  and  was  pulled  off  the  car  and  fell 
under  the  wheels.  The  only  defect  complained  of  was 
that  the  sill  on  which  the  machinery  rested  for  throw- 
ing the  switch  extended  beyond  the  track  embankment, 
and  that  there  was  no  filling  under  the  extension  so 


DIRECTING   VERDICT   FOR   DEFENDANT.  245 

as  to  bring  the  embankment  up  to  a  level  with  it.  The 
switch  had  been  in  the  same  condition  for  five  years 
prior  to  the  injury,  during  which  period  no  accident 
had  occurred,  and  the  plaintiff  was  familiar  with  the 
switch,  having  been  a  brakeman  on  that  section  of  the 
road  for  four  months.  There  was  no  proof,  other  than 
the  accident  itself,  that  machinery  thus  constructed  was 
dangerous.  It  was  held  that  an  instruction  to  find  for 
the  defendant  was  properly  given. 

In  Smith  v.  Baker,  [1891]  A.  C.  325,  335,  an  action 
under  the  English  act  of  1880,  Lord  Halsbury,  L.  C., 
says,  though  he  immediately  adds  that  the  question  of 
the  defendant's  negligence  was  not  open  on  that  appeal : 
"  I  think  the  unexplained  and  unaccounted-for  fact  that 
the  stone  was  being  lifted  over  a  workman,  and  that 
it  fell  and  did  him  damage,  would  be  evidence  for  a 
jury  to  consider  of  negligence  in  the  person  responsible 
for  the  operation." 

§  166.  (6)  Negligence  of  a  Superintendent.1 
In  Mahoney  v.  New  York  &c.  Ry.,  160  Mass.  573,  a 
freight-handler  was  injured  while  assisting  in  unloading 
a  bale  of  burlaps,  weighing  about  2,200  pounds,  from 
an  express  wagon.  One  Grady  was  the  section  boss 
who  superintended  the  unloading,  and  whose  negligence 
the  plaintiff  alleged  caused  his  injury.  The  express 
wagon  had  been  backed  up  to  the  door  of  the  defend- 
ant's freight-house,  and,  while  the  plaintiff  and  others 
were  trying  to  push  the  bale  of  burlaps  from  the  wagon 
into  the  freight-house,  the  rear  of  the  wagon  settled 
down,  the  bale  feh1  out,  the  wagon  was  forced  into  the 

1  For  other  cases  upon  this  subject,  see  ch.  iv.  §§  52-60. 


246  EMPLOYERS'  LIABILITY  ACTS. 

street,  and  the  plaintiff  was  thrown  out  under  the  bale 
and  injured.  Grady  had  ordered  the  teamster  to  trig 
or  scotch  the  wheels  of  the  wagon,  but  he  had  not 
used  a  gang-plank  which  was  near  by,  and  which 
would  have  prevented  the  accident  if  it  had  been 
used.  It  was  held  that  the  evidence  justified  a  finding 
that  the  superintendent,  Grady,  was  negligent.  In 
the  course  of  the  opinion,  Mr.  Justice  Knowlton  says, 
on  page  579  :  "  The  mere  happening  of  an  accident, 
if  it  is  one  that  the  exercise  of  ordinary  care  would 
commonly  prevent,  is  some  evidence  of  negligence.1 
Grady,  the  superintendent,  had  the  responsibility  of 
determining  how  the  bales  should  be  loaded  [unloaded]. 
It  was  proved  that  there  was  a  gang-plank  near  by 
which  might  have  been  used,  and  which  if  used  would 
have  prevented  this  accident.  The  jury  may  have 
found  from  the  evidence  that,  if  the  wheels  of  the 
wagon  had  been  more  securely  trigged  or  scotched,  it 
would  not  have  moved  forward  from  the  pressure  and 
the  accident  would  not  have  happened.  It  was  the 
duty  of  Grady,  who  ordered  the  men  to  unload  the 
bale,  to  take  all  reasonable  precautions  to  insure  their 
safety.  In  this  respect  his  relation  to  the  work  differed 
materially  from  that  of  the  plaintiff  and  the  other  men. 
The  plaintiff  had  a  right  to  assume  that  the  wheels 
were  properly  trigged,  and  that  the  method  selected  by 
the  foreman  for  unloading  was  safe  and  proper." 

In  Hennessy  v.  Boston,  161  Mass.  502,  a  laborer 
while  digging  a  trench  was  injured  by  the  side  caving 
in,  through  the  negligence,  as  he  alleged,  of  the  de- 
fendant's superintendent.  There  were  no  braces  in  the 

1  Citing  White  v.  Boston  &  Albany  Ry.,  144  Mass.  404. 


DIRECTING   VERDICT    FOR   DEFENDANT.  247 

trench,  which  was  deep,  long,  and  narrow,  except  two 
blocks  of  earth,  about  four  feet  wide,  which  were  left 
untouched,  and  these  blocks  were  about  twenty-five  feet 
apart.  There  was  no  unexpected  or  extraneous  cause 
for  the  caving  in  of  the  earth.  It  was  held  that  the 
plaintiff  was  entitled  to  go  to  the  jury  on  the  question 
of  the  superintendent's  negligence.  In  the  language 
of  the  court,  stated  by  Mr.  Justice  Knowlton  on  page 
503  :  "  It  was  an  accident  of  a  kind  that  is  commonly 
preventable  by  the  exercise  of  ordinary  care ;  and  the 
accident  itself,  in  connection  with  the  circumstances 
shown  in  regard  to  the  depth  of  the  trench  and  the 
slope  of  its  sides,  and  the  distance  of  the  braces  from 
each  other,  furnishes  evidence  from  which  the  jury 
might  have  found  negligence  on  the  part  of  the  fore- 
man in  charge  of  the  work."  l 

§  167.  Same. 

In  Carroll  v.  Willcutt,  163  Mass.  221,  the  plaintiff, 
while  engaged  in  cleaning  brick,  was  struck  on  the 
head  and  leg  by  a  large  ledge-stone,  which  fell  from  a 
staging  about  twenty  feet  above  him.  A  considerable 
part  of  this  stone  projected  over  the  outside  edge  of 
the  staging,. and  had  been  in  that  position  for  two  or 
three  days,  and  the  plaintiff  claimed  that  the  defend- 
ant's superintendent  was  negligent  in  not  discovering 
that  the  stone  was  so  placed  as  to  be  liable  to  fall  if  it 
should  be  hit,  or  if  the  staging  should  be  jarred  in  the 
prosecution  of  the  work.  How  much  of  the  stone  pro- 
jected over  the  staging  could  only  be  seen  from  above, 
and  there  was  no  evidence  that  the  stone  had  been  so 

1  See,  also,  Connolly  v.  Waltham,  156  Mass.  368. 


248  EMPLOYERS'  LIABILITY  ACTS. 

placed  by  the  specific  order  of  the  superintendent,  or 
that  he  had  visited  that  part  of  the  work  while  the 
stone  was  there,  or  had  actual  knowledge  that  the  stone 
was  upon  the  staging.  The  floors  had  not  been  put  in, 
and  the  roof  was  not  on.  In  an  action  under  the  Mas- 
sachusetts act,  it  was  held  that  the  evidence  would  not 
warrant  a  finding  that  the  superintendent  was  negli- 
gent, and  that  a  verdict  was  properly  ordered  for  the 
defendant. 

McCauley  v.  Norcross,  155  Mass.  584,  was  very  like 
Carroll  v.  Willcutt,  s^ra,  in  its  leading  facts ;  but  is 
distinguishable,  chiefly,  for  the  reason  that  the  super- 
intendent ordered  the  beams,  one  of  which  fell  and 
injured  the  plaintiff,  to  be  put  on  the  floor  where  they 
were,  and  allowed  them  to  remain  in  a  dangerous  posi- 
tion for  two  or  three  days.  It  was  held  that  the  jury 
was  warranted  in  finding  negligence  on  the  part  of  the 
superintendent. 

Evidence  that  the  foreman  in  charge  of  a  railroad 
roundhouse  sent  the  plaintiff  there  to  make  certain 
repairs  upon  a  locomotive  engine,  without  warning 
him  of  the  danger  arising  from  "  blowing  down  "  the 
engine,  and  without  notifying  the  engineer  that  the 
plaintiff  had  been  sent,  will  not  warrant  a  finding  that 
the  foreman  was  negligent,  and  a  verdict  should  be 
ordered  for  the  defendant.1 

.  l  Perry  v.  Old  Colony  Ry.,  164  Mass.  296  ;  41  N.  E.  Rep.  289. 


DIRECTING   VERDICT   FOR  DEFENDANT.  249 

§  168.  (c)  Negligence  of  a  Person  in  Charge  or  Con- 
trol of  any  Signal,  Switch,  Locomotive  Engine,  or 
Train  upon  a  Railroad. 

In  Graham  v.  Boston  &  Albany  Ry.,  156  Mass.  4,  a 
freight  brakeman  was  injured,  as  he  alleged,  by  the 
negligence  of  the  engineer  in  charge  or  control  of  the 
train,  by  starting  the  train  with  an  unusual  jerk,  which 
caused  an  oil-tank  to  slip  and  crush  the  plaintiff's  hand. 
The  plaintiff  testified  that  he  did  not  know  whether 
the  train  started  suddenly  or  not.  A  witness  for  the 
plaintiff  testified  that  starting  with  a  jerk  is  something 
that  will  happen  on  any  freight  train,  and  that  he 
could  not  swear  whether  it  was  a  usual  or  an  unusual 
jerk.  The  engineer  testified  that  he  did  not  start  with 
an  unusual  jerk,  and  that  he  did  nothing  out  of  the 
ordinary.  There  was  no  evidence  that  the  oil-tank 
would  not  slip  a  little  when  the  train  was  started  in  the 
ordinary  way.  It  was  held  that  this  evidence  would 
not  warrant  a  finding  that  the  engineer  was  negligent, 
and  that  a  verdict  should  have  been  ordered  for  the 
defendant. 

In  Birmingham  Ry.  #.  Wilmer,  97  Ala.  165,  a  brake- 
man, while  in  the  careful  discharge  of  his  duty  on  top 
of  a  freight-car,  was  thrown  off  and  injured  by  the  sud- 
den starting  of  the  train  on  an  up  grade.  The  plaintiff 
contended  that  the  engineer  in  charge  of  the  locomo- 
tive was  negligent,  and  he  testified  that  the  train  was 
started  with  an  "  unusual  hard  jerk,"  and  it  was  not 
disputed  that  the  plaintiff  was  either  knocked  off  or  fell 
off  in  consequence  of  this  jerk.  In  an  action  under 
the  Alabama  act  it  was  held  that  the  statement  that  the 


250  EMPLOYERS'  LIABILITY  ACTS. 

train  started  with  an  "  unusual  hard  jerk  "  was  admis- 
sible as  a  "short-hand  rendering"  of  facts,  and  that 
the  evidence  would  warrant  a  finding  of  negligence  on 
the  part  of  the  engineer,  for  which  the  defendant  was 
liable.  In  the  court's  opinion,  delivered  by  Mr.  Justice 
McClellan,  it  is  said  on  page  169  :  "  Moreover,  it  is  not 
disputed  that  plaintiff  was  knocked  off  by,  or  fell  off 
the  train  in  consequence  of,  this  jerk.  This  was  itself 
some  evidence  for  the  jury  that  the  jerk  was  unusually 
and  negligently  severe.  It  surely  cannot  be  said  to  be 
usual  or  necessary  to  jerk  a  train  into  motion  under 
any  circumstances  with  such  force  and  suddenness  as 
to  hurl  employees  from  the  top  of  it  while  they,  as 
the  jury  might  have  found  the  plaintiff  to  be,  are 
ordinarily  careful  and  diligent.  The  testimony  of  the 
plaintiff  as  to  the  character  of  the  jerk,  the  fact  that 
he  was  thrown  off  or  feh1  off  at  the  time  of  the  jerk, 
and  his  further  testimony  as  to  what  he  was  doing  at 
the  time  and  the  manner  of  doing  it,  which  the  jury 
might  have  believed,  and,  believing,  found  that  he  was 
using  due  care  to  maintain  his  position,  but  that,  not- 
withstanding this,  the  jerk  was  so  violent  as  to  inflict 
the  injury  complained  of,  was  such  evidence  of  the 
engineer's  negligence  as  to  require  the  case  to  go  to 
the  jury." 

In  Thyng  v.  Fitchburg  Ry.,  156  Mass.  13,  a  brake- 
man  was  killed  by  the  breaking  apart  of  a  freight  train. 
The  two  cars  between  which  the  coupling  gave  way 
were  not  the  property  of  the  defendant.  In  this  action 
under  the  Massachusetts  act,  the  administratrix  of  the 
brakeman  sought  to  charge  the  defendant  on  the 
ground  that  the  injury  was  caused  by  the  negligence 


DIRECTING   VERDICT   FOR  DEFENDANT.  251 

of  a  person  having  the  charge  or  control  of  a  train. 
The  only  evidence  which  tended  to  support  this  view 
was  that  too  short  a  coupling-pin  had  been  used  in 
making  up  the  train.  The  defendant's  evidence  showed 
that  in  the  freight-yard  where  the  train  was  made  up 
there  were  always  pins  of  all  different  lengths,  and  this 
was  undisputed  by  the  plaintiff.  It  was  held  that  the 
evidence  did  not  indicate  negligence  of  a  person  in 
charge  or  control  of  a  train  as  distinguished  from  neg- 
ligence of  a  fellow-servant,  and  that  a  verdict  was 
properly  ordered  for  the  defendant. 

§  169.  Same. 

In  Hears  v.  Boston  &  Maine  Ry.,  163  Mass.  150, 
the  conductor  of  a  freight  train  allowed  one  of  the  cars 
to  be  "kicked"  off  on  to  a  track,  with  a  descending; 

o 

grade  without,  a  brakeman  upon  it,  contrary  to  the  rules 
of  the  road.  It  ran  into  two  freight-cars  and  killed 
the  plaintiff's  husband,  while  he  was  inspecting  a 
freight-car  in  the  due  performance  of  his  duties.  In 
an  action  under  the  act,  it  was  held  that  the  evidence 
would  warrant  a  finding  of  negligence  on  the  part  of 
the  conductor,  for  which  the  defendant  was  liable,  and 
that  the  presiding  justice  erred  in  ordering  a  verdict 
for  the  defendant. 

In  Tennessee  Coal  Co.  v.  Hayes,  97  Ala.  201,  the 
plaintiff,  while  engaged  in  loading  coal  into  an  empty 
car,  was  injured  by  another  car  colliding  with  his  car  on 
a  down  grade.  The  person  in  charge  of  the  second  car 
put  it  in  motion  by  "  pinching,"  and  the  first  car  was 
at  rest.  There  was  some  evidence  that  the  second  car 
was  supplied  with  a  brake,  and  that  after  the  car  was 


252  EMPLOYERS'  LIABILITY  ACTS. 

started  no  effort  was  made  to  stop  it  by  using  the  brake. 
It  was  held  that  this  evidence  would  justify  a  finding 
of  negligence  for  which  the  defendant  was  liable  under 
the  act.  Another  part  of  the  evidence  tended  to  show 
that  there  was  no  brake  on  the  car,  and  that  the  person 
in  charge  of  it,  one  Ried,  and  his  son,  undertook  to 
stop  the  car  by  putting  obstructions  on  the  track  in 
front  of  it.  It  was  held  that  the  fact  that  the  car  was 
allowed  to  escape  and  run  wild,  when  it  might  have 
been  controlled  and  moved  in  safety,  would  justify  an 
inference  of  negligence,  on  the  maxim  res  ipsa  loquitur, 
and  a  verdict  against  the  employer  under  the  statute. 
In  the  language  of  the  court  by  Mr.  Justice  McClellan, 
on  page  207 :  "  There  was,  in  other  words,  evidence 
from  which  the  jury  might  have  found  that  a  car 
having  no  brake  could  with  due  care  have  been  safely 
moved  and  controlled  by  the  Eieds ;  and  from  the  fact 
that  this  one  was  not  so  moved  and  controlled,  but 
allowed  to  escape  and  run  wild,  it  not  appearing  that 
everything  which  due  care  and  diligence  required  was 
done  to  control  it,  the  jury  were  at  liberty  to  infer,  on 
the  maxim  res  ipsa  loquitur,  that  the  requisite  care 
was  not  used  by  them." 

In  Birmingham  Ry.  v.  Baylor,  101  Ala.  488;  13 
So.  Rep.  793,  a  locomotive  fireman  was  injured  by  the 
train  running  on  to  a  spur  track  from  the  main  track, 
through  the  alleged  negligence  of  the  person  in  charge 
of  the  switch  in  leaving  it  open.  The  evidence  was, 
that  the  switch  had  been  used  about  thirty  minutes 
before  the  accident,  and  the  engineer  testified  that  it 
was  properly  secured  before  he  left  it.  The  plain- 
tiff's train  was  the  next  one  to  pass  the  switch,  and  he 


DIRECTING   VERDICT   FOR  DEFENDANT.  253 

testified  that  his  train  left  the  main  track  and  went 
through  the  switch  on  to  the  spur  track.  It  was  held 
in  this  action  under  the  Alabama  statute  that  there  was 
sufficient  evidence  that  the  switch  was  open  to  require 
the  submission  of  the  case  to  the  jury. 

Other  cases  under  this  head  are  cited  in  the  foot- 
note.1 

1  Mary  Lee  Coal  Co.  v.  Chambliss,  97  Ala.  171 ;  Gibbs  v.  Great  West- 
ern %.,  12  Q.  B.  D.  208. 


CHAPTER  XIII. 


DIRECTING  A  NONSUIT  OR  VERDICT  FOR  DEFENDANT 
(CONTINUED). 

II.  Plaintiff's  Contributory  Negligence. 


Section 

170.  Tests  and  illustrations  in  Mas- 

sachusetts. 

171.  Alabama  rules. 


Section 

172.  Employee's  death  while  in  dis- 

charge of  duty.     Massachu- 
setts cases. 

173.  Same.     Alabama  cases. 


§  170.  Tests  and  Illustrations  in  Massachusetts.1 
IN  an  action  under  the  Massachusetts  statute,  Mr. 
Justice  Knowlton,  in  delivering  the  opinion  of  the  court, 
says :  "  It  does  not  appear  that  the  plaintiff  was  doing 
anything  which  would  generally  be  deemed  careless  by 
prudent  men,  and  we  cannot  say,  as  matter  of  law,  that 
he  was  not  in  the  exercise  of  due  care." 2  It  was  held 
that  the  case  was  properly  submitted  to  the  jury,  and 
that  a  verdict  for  the  plaintiff  was  warranted  by  the 
evidence. 

In  Graham  v.  Boston  &  Albany  Ry.,  156  Mass.  4,  a 
freight  brakeman  had  his  hand  injured  by  the  shifting 
of  an  oil-tank  in  a  car  whieh  he  was  uncoupling  from 
another  car  in  a  train.  In  an  action  under  the  statute 

1  Many  other  cases  upon  this  subject  are  cited  and  stated  in  the  chap- 
ter on  Contributory  Negligence,  §§  113-122,  ante. 

2  Mahoney  v.  New  York  &c.  Ry.,  160  Mass.  573,  579.     See,  also,  Gib- 
son v.  Sullivan,  164  Mass.  557. 


DIRECTING   VERDICT    FOR   DEFENDANT.  255 

the  plaintiff  testified  that  he  had  never  before  seen  a 
car  with  a  space  between  the  oil-tank  and  the  block 
designed  to  keep  the  tank  in  place;  that  when  he 
reached  over  with  his  right  hand  to  get  the  coupling- 
pin  he  also  reached  back  with  his  left  hand  for  the  grab- 
iron  ;  that,  not  finding  it,  he  took  hold  of  the  block,  and 
the  engineer  started  up  the  train  with  a  jerk,  and  the  oil 
tank  shifted  and  crushed  his  hand*  against  the  block. 
It  was  held  that  there  was  sufficient  evidence  of  due 
care  to  go  to  the  jury.  In  delivering  the  court's 
opinion,  Mr.  Justice  Knowlton  says,  on  page  8 :  — 

"  We  are  of  opinion  that  the  question  whether  the 
plaintiff  was  in  the  exercise  of  due  care  was  rightly 
submitted  to  the  jury.  If  he  had  reflected  carefully, 
he  might  have  known  that  the  tank  would  be  likely  to 
slip  a  little  on  the  car  when  the  train  started  up  with  a 
jerk ;  but  he  testified  that  he  had  never  before  seen  a 
car  with  a  space  between  the  tank  and  the  block  which 
was  designed  to  keep  the  tank  in  place,  and  it  is  not 
very  strange,  when  he  reached  back  with  his  hand  ( to 
feel  if  there  was  a  grab-iron  there,'  that  he  took  hold 
of  the  block  and  exposed  his  fingers  to  danger  without 
thinking  of  the  consequences." 

In  Thompson  v.  Boston  &  Maine  Ry.,  153  Mass. 
391,  a  brakeman  was  injured  in  the  act  of  jumping  off 
a  freight  train  in  slow  motion,  in  order  to  set  a  brake 
on  another  part  of  the  train  under  the  conductor's 
orders.  He  swung  off  between  two  cars,  without  looking 
ahead  or  taking  any  other  precaution  to  avoid  obstruc- 
tions near  the  track,  and  did  not  see  a  pile  of  rails  near 
the  track  until  it  was  too  late  for  him  to  regain  his  posi- 
tion of  safety.  He  was  obliged  to  let  go,  and  fell  upon 


256  EMPLOYERS'  LIABILITY  ACTS. 

the  pile  of  rails  and  was  injured.  It  was  held  that  he 
was  guilty  of  contributory  negligence,  and  could  not 
recover  either  under  the  Employers'  Liability  Act  or  at 
common  law,  and  that  it  was  proper  to  direct  a  verdict 
for  the  defendant. 

A  workman  standing  aloft  on  a  pile-driver,  engaged 
in  placing  a  pile  in  position  for  driving,  is  not  guilty 
of  contributory  negligence  if  he  puts  his  hand  on  top 
of  the  pile,  directly  in  the  line  of  descent  of  the  ham- 
mer ;  and  if  his  hand  is  injured  by  the  hammer's  fall- 
ing prematurely,  through  the  negligence  of  the  defend- 
ant's superintendent  in  giving  an  order,  he  may  recover 
under  the  statute.1 

The  rules  of  the  common  law  upon  this  subject  in 
Massachusetts  are  substantially  like  those  stated  above 
under  the  Employers'  Liability  Act.2 

§  171.  Alabama  Rules. 

In  McNamara  v.  Logan,  100  Ala.  187,  the  plaintiff 
was  crushed  between  the  wall  of  a  mine  entry  and  a  car, 
while  he  was  attempting  to  sprag  the  car-wheels  on  a 
down  grade.  It  was  the  first  trip  that  plaintiff  had 
made  in  the  entry,  and  at  the  place  where  he  was 
injured  the  wall  was  so  close  to  passing  cars  as  to  ren- 
der spragging  dangerous,  but  plaintiff  did  not  know 
this  fact.  One  D,  who  had  charge  of  the  drivers, 
went  with  the  plaintiff  to  show  him  where  to  begin 

1  McPhee  v.  Scully,  163  Mass.  216. 

2  Bjbjian  v.  Woonsocket  Rubber  Co.,  164  Mass.  214  (rubber  compound- 
ing machine)  ;  Degnan  v.  Jordan,  164  Mass.  84  (elevator)  ;  Murphy  v. 
Webster,  151  Mass.  121  ;  s.  C.,  156  Mass.  48  (elevator)  ;  Taylor  v.  Carew 
Manuf.  Co.,  140  Mass.  150  ;  s.  c.,  143  Mass.  470  (elevator  well)  ;  Law- 
less v.  Connecticut  River  Ry.,  136  Mass.  1  (locomotive). 


DIRECTING   VERDICT   FOR   DEFENDANT.  257 

spragging,  which  was  done  on  the  down  grade  by  run- 
ning along  beside  the  car.  When  they  reached  the 
grade,  D  jumped  off  to  sprag  the  wheels  on  his  side, 
and  the  plaintiff  jumped  off  on  his  side  and,  while  run- 
ning along  beside  the  car  attempting  to  sprag  the 
wheels,  he  was  crushed  between  the  car  and  the  wall. 
It  was  held  that  the  defendant's  request  for  a  ruling 
that  the  plaintiff  could  not  recover,  because  he  had 
been  guilty  of  contributory  negligence,  was  properly 
refused  by  the  presiding  justice ;  that  the  question  was 
at  least  one  for  the  jury  to  determine ;  and  that  a  find- 
ing for  the  plaintiff  was  justified  by  the  evidence. 

In  Richmond  &c.  Ry.  v.  Thomason,  99  Ala.  471,  a 
brakeman,  while  attempting  to  uncouple  two  cars  while 
in  motion  without  using  a  stick,  in  violation  of  a  known 
rule  of  the  railroad  company,  was  thrown  between  the 
cars  and  crushed,  through  the  negligence  of  the  loco- 
motive engineer  in  suddenly  stopping  and  starting  the 
train.  It  was  held  that  he  was  guilty  of  contributory 
negligence,  and  that  the  jury  should  have  been  directed 
to  find  for  the  defendant  in  an  action  under  the 
Employers'  Liability  Act.1 

In  Davis  v.  Western  Ry.,  104  Ala.  000  ;  18  So.  Rep. 
173,  a  switchman  had  his  arm  crushed  in  attempting  to 
uncouple  cars  in  a  moving  freight  train.  A  foreman  to 
whose  order  the  plaintiff  was  bound  to  conform  ordered 
him  to  "  cut  off  one  car."  There  was  no  emergency 
requiring  haste.  The  cars  had  double  deadwoods,  and 
were  going  backwards,  and  were  pulling  on  the  engine 
so  that  the  draw  was  taut.  He  failed  to  give  the  usual 
signal  to  the  engineer  to  cause  a  slack  between  the  cars 

1  See,  also,  Richmond  &c.  Ry.  v.  Free,  97  Ala.  231. 


258  EMPLOYERS'  LIABILITY  ACTS. 

before  going  between  them,  and  when  the  slack  came 
he  was  crushed  between  the  deadwood.  He  was  a  man 
thirty  years  of  age,  and  had  worked  on  railroads  and  in 
switching  cars  for  about  nine  years,  and  had  worked  in 
defendant's  yard  for  about  one  year.  In  an  action 
under  the  Employers'  Liability  Act  it  was  held  that  a 
verdict  was  properly  ordered  for  the  defendant,  upon 
the  ground  that  the  plaintiff  had  been  guilty  of  con- 
tributory negligence. 

In  Burgin  v.  Louisville  &c.  Ry.,  97  Ala.  274,  a 
brakeman  jumped  off  the  pilot  of  a  moving  engine  at 
an  unusual  place  for  employees  to  alight,  at  which  place 
there  was  a  low  embankment.  It  was  dark  at  the  time, 
and,  although  he  carried  his  lighted  lantern  in  one 
hand,  he  did  not  use  it  to  see  where  he  would  alight. 
There  was  no  necessity  for  his  getting  off  at  that  place, 
and  the  danger  was  an  obvious  one  if  he  had  stopped 
to  look.  It  was  held  that  no  ordinarily  prudent  man 
would  have  done  such  an  act  under  the  circumstances, 
that  he  was  guilty  of  contributory  negligence,  and  that 
a  verdict  was  properly  ordered  for  the  defendant.1 

In  Louisville  &c.  Ry.  v.  Markee,  103  Ala.  000;  15  So. 
Rep.  511,  a  section  foreman  in  charge  of  a  hand-car 
was  killed  by  a  collision  with  a  train  of  cars  on  a  curve. 
The  rules  of  the  railroad  company  required  curves  to 
be  flagged  by  section  foremen,  and  a  constant  lookout 
kept.  The  deceased,  although  he  knew  this  rule,  failed 
to  flag  this  curve,  and  there  was  evidence  that  if  the 
curve  had  been  flagged  the  engineer  would  have  had 
time  and  space  sufficient  to  have  stopped  the  train,  and 

1  See,  also,  Thompson  v.  Boston  &  Maine  Ry.,  153  Mass.  391  ;  Rich- 
mond &c.  Ry.  v.  Bivins,  103  Ala.  000  ;  15  So.  Rep.  515. 


DIRECTING   VERDICT   FOR   DEFENDANT.  259 

thus  to  have  prevented  the  collision,  both  the  train  and 
the  hand-car  moving  in  the  same  direction.  It  was 
held  in  an  action  by  his  administratrix  under  the  stat- 
ute that  he  was  guilty  of  contributory  negligence. 

As  to  what  acts  on  the  part  of  a  locomotive  engineer 
in  charge  of  an  engine  will  constitute  contributory 
negligence  as  matter  of  law  on  his  part,  so  as  to  pre- 
vent a  recovery  by  him  or  his  personal  representative 
under  the  Alabama  statute,  see  Louisville  &c.  Ry.  v. 
Stutts,  104  Ala.  000;  17  So.  Rep.  29. 

§  172.  Employee's  Death  while  in  Discharge  of  Duty. 
Massachusetts  Cases. 

In  Massachusetts  the  fact  than  an  employee  is  killed 
while  in  the  discharge  of  his  work,  without  proof  as  to 
what  he  was  doing  at  the  time,  will  not  warrant  a 
finding  that  he  was  in  the  exercise  of  due  care,  and  a 
verdict  should  be  ordered  for  the  defendant,  whether 
the  action  is  at  common  law  1  or  under  the  Employers' 
Liability  Act.2 

In  Geyette  v.  Fitchburg  Ry.,  162  Mass.  549,  a  freight 
brakeman  on  a  night  train  was  killed  by  falling  off  the 
train  at  about  four  o'clock  in  the  morning  of  a  dark 
night.  The  train  consisted  of  two  engines,  twenty-two 
cars,  and  a  caboose.  The  deceased,  while  on  the  second 
engine,  stated  that  he  could  not  see  the  red  light  on  the 
rear  of  the  train,  and  he  started  out  to  ascertain  if  the 
train  had  broken  apart.  As  a  matter  of  fact,  the  train 

1  Corcoran  v.  Boston  &  Albany  Ry.,  133  Mass.  507  ;  Riley  v.  Connecti- 
cut River  Ry.,  135  Mass.  292. 

a  Tyndale  ».  Old  Colony  Ry.,  156  Mass.  503  ;  Irwin  v.  Alley,  158 
Mass.  249  ;  Felt  v.  Boston  &  Maine  Ry.,  161  Mass.  311. 


260  EMPLOYEES'  LIABILITY  ACTS. 

had  previously  broken  apart.  He  was  not  seen  alive 
after  he  left  the  engine,  and  his  dead  body  was  found 
in  the  centre  of  the  track  between  the  rails.  There 
were  indications  that  he  struck  on  his  feet  between 
the  tracks  and  was  run  over  by  the  rear  part  of  the 
train.  In  an  action  under  the  Employers'  Liability 
Act,  it  was  held  that  the  evidence  failed  to  show  that 
the  deceased  was  in  the  exercise  of  due  care,  and  that 
a  verdict  for  the  defendant  was  properly  ordered  by 
the  presiding  justice. 

But  where  the  evidence  shows  that  the  deceased  was 
in  the  performance  of  his  duty  shortly  before  the  acci- 
dent, and  that  the  circumstances  did  not  call  for  any 
positive  act  of  care  on  his  part  in  reference  to  the 
force  which  caused  the  accident,  a  finding  of  due  care 
will  be  justified,  and  the  case  should  not  be  withdrawn 
from  the  jury.1 

Likewise,  when  the  deceased  was  performing  his  duty 
at  the  time  of  the  injury,  and  was  injured  by  a  defect 
or  breach  of  duty  which  had  arisen  or  occurred  sud- 
denly without  his  knowledge,  the  question  of  his  due 
care  is  generally  one  for  the  jury.  Thus,  in  Gustafsen 
v.  Washburn  &  Moen  Manuf.  Co.,  153  Mass.  468,  an 
employee  was  killed  by  falling  into  a  ditch  across  a 
railroad  track  on  the  defendant's  premises  while  he  was 
assisting  in  pulling  a  loaded  car  along  the  track.  The 
ditch  had  been  dug  on  the  morning  of  the  accident, 
and  no  warning  had  been  given  to  the  deceased,  or  to 
the  other  employees  who  had  formerly  used  the  track. 

1  Thyng  v.  Fitchburg  Ry.,  166  Mass.  13,  as  explained  in  Geyette  v. 
Fitchburg,  162  Mass.  549,  551 ;  Caron  v.  Boston  &  Albany  Ry.,  164  Mass. 
£23  ;  Houlihan  v.  Connecticut  River  Ry.,  164  Mass.  555. 


DIRECTING   VERDICT   FOR  DEFENDANT.  261 

The  operation  of  pulling  the  car  required  the  men  to 
lean  forward  and  bend  down  their  heads.  There  was 
no  direct  evidence  that  the  deceased  knew  of  the  exist- 
ence of  the  ditch.  In  an  action  under  the  Massachu- 
setts act,  it  was  held  that  it  was  a  question  for  the  jury 
to  determine  whether  the  deceased  was  in  the  exercise 
of  due  care  at  the  time  of  his  injury. 

In  Mears  v.  Boston  &  Maine  Ry.,  163  Mass.  150,  a 
car-inspector  was  instantly  killed  by  being  crushed  by  a 
freight-car  while  he  was  inspecting  another  car  in  the 
course  of  his  duty  in  the  defendant's  employ.  A  car 
had  been  "  kicked  "  off  from  a  freight  train,  and  sent 
down  a  descending  grade  on  a  track  without  a  brake- 
man,  contrary  to  a  rule  of  the  railroad.  It  struck  two 
box-cars  which  had  been  left  standing;  on  the  track  in 

O 

such  a  position  as  to  cut  off  from  the  view  of  the 
deceased  the  approaching  car,  and  he  had  no  notice 
that  a  car  would  be  kicked  off  and  sent  down  the  track 
in  that  manner.  It  was  held,  in  this  action  under  the 
statute  by  his  widow,  that  there  was  sufficient  evidence 
of  due  care  on  his  part  to  require  the  submission  of 
the  case  to  the  jury,  and  that  the  trial  judge  erred  in 
directing  a  verdict  for  the  defendant. 

In  McLean  v.  Chemical  Paper  Co.,  165  Mass.  5,  the 
failure  of  the  deceased  to  notify  the  fireman  in  charge 
of  a  steam  boiler  that  he  was  going  into  a  manhole 
connected  with  the  boiler  was  held  to  be  contributory 
negligence,  and  to  justify  a  direction  to  find  for  the 
defendant. 


262  EMPLOYERS'  LIABILITY  ACTS. 

§  173.    Same.     Alabama  Cases. 

In  Alabama  the  burden  of  proving  contributory  neg- 
ligence rests  upon  the  defendant,  and  when  there  is 
no  proof  of  such  negligence  the  plaintiff  is  entitled 
to  go  to  the  jury  upon  this  question,  and  a  verdict 
should  not  be  ordered  for  the  defendant  because  the 
plaintiff  has  not  shown  that  he  was  in  the  exercise  of 
due  care  and  diligence  at  the  time  of  the  injury.  In 
this  respect  the  Alabama  rule  differs  radically  from 
that  of  Massachusetts,  and  the  difference  is  very  appar- 
ent in  the  class  of  cases  now  under  consideration. 

In  Bromley  v.  Birmingham  Ry.,  95  Ala.  397,  a  freight 
brakeman  fell  off  his  train  while  in  motion,  and  was  run 
over  and  killed.  No  one  saw  him  fall,  and  there  was 
no  evidence  as  to  the  circumstances  immediately  pre- 
ceding his  death.  Shortly  before  his  death,  the  train 
separated  into  two  parts,  and  it  then  became  his  duty 
to  at  once  apply  the  brakes.  He  was  last  seen  alive 
standing  on  the  top  of  a  rear  car  near  the  brake,  and  a 
few  moments  afterwards  his  body  was  found  between 
the  rails,  crushed  by  the  car.  The  car  had  a  large 
hole  in  the  top,  near  the  brake.  The  conductor  knew 
of  this  hole,  and  it  was  obvious  to  any  one  in  the  day- 
light. In  an  action  under  the  Alabama  statute  by  his 
administrator,  it  was  held  that  the  plaintiff  was  entitled 
to  go  to  the  jury,  both  upon  the  question  of  due  care 
and  upon  the  question  that  there  was  a  defect  in  the 
car  which  caused  his  death.  In  delivering  the  court's 
opinion,  Mr.  Justice  Coleman  says,  on  page  399 :  "  If 
the  facts  and  circumstances  proven  are  such  that  a 
jury  would  be  authorized  to  legally  infer  that  deceased 


DIRECTING   VERDICT   FOR   DEFENDANT.  263 

was  engaged  in  the  performance  of  his  duties  as  brake- 
man  ;  that  the  hole  in  the  top  of  the  box-car  was  the 
proximate  cause  of  the  injury,  and  if  there  was  no  evi- 
dence of  contributory  negligence,  —  then  the  court  was 
not  authorized  to  give  the  general  charge  for  the 
defendant,  but  under  such  proof  the  question  should 
have  been  submitted  to  the  jury.  If,  however,  the 
facts  proven  leave  the  question  as  to  what  caused  the 
injury  wholly  in  conjecture,  as  distinguished  from  legal 
inference,  there  was  nothing  to  submit  to  a  jury.  The 
burden  is  upon  the  plaintiff  to  make  out  his  case. 
He  must  not  only  aver  and  prove  both  an  injury  and 
negligence,  but  he  must  go  further  and  establish  a 
proximate  causal  connection  between  the  injury  and 
the  negligence."  ^ 

On  page  405  the  same  learned  justice  says,  after 
reviewing  the  cases  from  several  other  States  :  "  There 
must  be  some  proof  or  circumstance  to  show  that  the 
negligence  caused  the  injury,  and  the  presumption  that 
no  one  will  contribute  to  his  own  injury  cannot  take 
the  place  of  such  evidence.  It  is  not  necessary  that 
there  be  an  eye-witness,  if  there  are  other  circumstances 
which  tend  to  show  that  the  defect  in  the  top  of  the 
car  caused  the  fall ;  and  if  these  were  shown,  the  gen- 
eral charge  should  not  have  been  given.  Considering 
the  character  of  the  hole,  its  location  with  regard  to 
the  location  of  the  brakes,  the  duty  to  be  performed  in 
setting  up  brakes,  the  fact  that  the  brakeman  was  last 
seen  alive  at  this  point  where  his  duty  called  him, 
that  he  fell  and  was  run  over  by  the  cars,  —  taking 
into  consideration  these  attending  circumstances,  we 
cannot  say  that  there  was  no  evidence  from  which  an 


264  EMPLOYERS'  LIABILITY  ACTS. 

inference  might  not  be  legally  drawn  by  a  jury  that  the 
defect  caused  the  injury.  We  think,  under  all  the  facts 
proven,  that  the  question  should  have  been  referred  to 
the  jury." 

In  Nave  v.  Alabama  Great  Southern  Ry.,  96  Ala. 
264,  the  plaintiff's  intestate,  a  boy  fifteen  years  of 
age,  was  killed  by  a  south-bound  train.  He  had  been 
stationed  at  the  place  of  injury  to  signal  north-bound 
trains  to  stop,  in  order  to  protect  a  gang  of  men  who 
were  laying  steel  rails  on  the  track  about  a  mile  to  the 
north  of  him.  He  was  killed  about  ten  o'clock  in  the 
morning.  The  track  was  straight  for  half  a  mile,  and 
he  had  an  unobstructed  view  of  it  and  of  the  approach- 
ing train.  No  warning  of  the  train's  approach  was 
given.  The  defendant's  evidence  tended  to  show  that 
the  deceased  was  asleep,  lying  with  his  body  extending 
down  into  a  ditch,  and  in  such  a  position  that  he  could 
not  be  seen  until  the  train  was  within  a  few  feet  of 
him.  In  an  action  under  the  Alabama  act,  it  was  held 
that  the  deceased  was  guilty  of  contributory  negligence, 
and  that  a  verdict  was  properly  ordered  for  the  de- 
fendant. The  court  stated  that  it  had  not  considered 
the  defendant's  evidence  in  reaching  its  conclusion. 


CHAPTER  XIV. 


DIRECTING   A    NONSUIT    OB   VERDICT    FOR  DEFENDANT 
(CONCLUDED). 

III.  Assumption  of  Risk,  and  Vblenti  non  fit  Injuria. 

A.     DEFECTS   IN  THE   WATS,   WORKS,   MACHINERY,    OR   PLANT. 


Section 

174.  Preliminary  observations  and 

subdivisions  of  chapter. 

175.  Definitions  and  illustrations. 

176.  Continuance  in  defendant's  em- 

ploy with  knowledge  of  the 
risk.     (1)  English  rule. 

Same. 

Same.     Statutory  de- 


177.  Same. 

178.  Same. 

fects. 

179.  Same. 


(2)     Alabama     rule. 


Early  cases. 

180.  Same.     Same.     Late  cases. 

181.  Same.  (3)  Massachusetts  rule. 

Absence    of     guard-rail,    or 
other  safety  appliance. 


Section 

182.  Obvious  danger. 

183.  Same.     Ignorance  of  plaintiff, 

and  failure  to  warn  him  of 
increased  danger. 

184.  Same.     Work  outside  of  ordi- 

nary duty.     Finding  of  due 
care  of  plaintiff. 

185.  Understanding  and  apprecia- 

tion of  danger. 

186.  Same.     Young   and  inexperi- 

enced employees. 

187.  Assumption  of  risk  by  minor 

employee. 


B.  NEGLIGENCE  OF  A  SUPERINTENDENT. 


188.  No  assumption  of  risk  from 
superintendent's  negligence 
under  the  statute. 


189.  Common-law  rule. 


C. 


190.  Negligence    of     one     having 
charge  or  control  of  signal, 


switch,  locomotive  engine,  or 
train  upon  a  railroad. 


266  EMPLOYERS'  LIABILITY  ACTS. 


A.   DEFECTS   IN   THE   WATS,    WORKS,    MACHINERY,    OR   PLANT. 

§  174.  Preliminary  Observations  and  Subdivisions 
of  Chapter. 

IN  so  far  as  the  defence  of  assumption  of  risk 
relates  to  defects  in  the  condition  of  ways,  works, 
machinery,  or  plant,  the  Employers'  Liability  Acts 
have  not  changed  the  common-law  rules  upon  the 
subject;  the  common-law  liability  of  the  employer  is 
neither  enlarged  nor  lessened  by  the  statutes  upon  the 
question  of  assuming  the  risk  of  such  defects,  but 
remains  precisely  the  same.  In  a  case  of  this  nature 
brought  under  the  Massachusetts  act,  with  a  count  at 
common  law,  the  court,  by  Mr.  Justice  Lathrop,  ex- 
pressly says :  "  On  the  question  whether  the  plaintiff 
took  the  risk,  there  is  no  difference  whether  the  action 
is  brought  at  common  law  or  under  the  statute  of 
1887,  ch.  270." l  A  like  principle  applies  to  the 
maxim  volenti  nonfit  injuria. 

After  reviewing  some  of  the  English  and  Massachu- 
setts decisions,  the  Alabama  court  says,  in  Birmingham 
Ky.  v.  Allen,  99  Ala.  359,  374,  per  Mr.  Justice  Cole- 
man  :  "  It  is  very  clear  that,  so  far  as  the  authorities 
outside  of  this  State  go,  the  rule  declared  in  the  case  of 
Eureka  Co.  v.  Bass,  81  Ala.  200,  was  not  abolished  by 
the  Employers'  Liability  Act.  Possibly  it  was  some- 
what modified,  but,  as  we  understand  the  rule  volenti 
nonfit  injuria  as  applied  in  the  particular  cases  cited 

1  Cassady  v.  Boston  &  Albany  Ry.,  164  Mass.  168,  170.  See,  also, 
O'Maley  v.  South  Boston  Gas  Light  Co.,  158  Mass.  135  ;  Gleason  v.  New 
York  &c.  Ry.,  159  Mass.  68  ;  Birmingham  Ry.  v.  Allen,  99  Ala.  359  ; 
Smith  v.  Baker,  [1891]  A.  C.  325. 


DIRECTING   VERDICT   FOR  DEFENDANT.  267 

from  the  English  and  Massachusetts  courts,  there  has 
been  in  fact  no  material  modification." 

With  respect,  however,  to  injuries  caused  by  the 
negligence  of  a  superintendent,  or,  when  the  action 
is  against  a  railroad  company,  by  the  negligence  of 
a  person  having  the  "charge  or  control"  of  certain 
appliances,  the  Employers'  Liability  Acts  have  either 
entirely  abolished,  or  at  least  materially  modified,  the 
doctrines  of  assumption  of  risk  and  volenti  non  fit 
injuria,  and  have  thereby  greatly  enlarged  the  rights 
of  employees  and  the  liabilities  of  employers.1 

The  subject  will  be  discussed  under  the  following 
subdivisions :  — 

A.  Defects  in  the  ways,  works,  machinery,  or  plant. 

B.  Negligence  of  a  superintendent. 

C.  Negligence  of  one  having  the  charge  or  control 
of  a  signal,  switch,  engine,  or  train  upon  a  railroad. 

§  175.  Definitions  and  Illustrations. 

Volenti  non  fit  injuria :  "  That  to  which  a  person 
assents  is  not  esteemed  in  law  an  injury." 2 

In  Smith  v.  Baker,  [1891]  A.  C.  325  at  355,  Lord 
Watson  says :  "  The  maxim  volenti  non  fit  injuria, 
originally  borrowed  from  the  civil  law,  has  lost  much  of 
its  literal  significance.  A  free  citizen  of  Rome  who,  in 
concert  with  another,  permitted  himself  to  be  sold  as  a 
slave  in  order  that  he  might  share  in  the  price,  suffered 
a  serious  injury,  but  he  was  in  the  strictest  sense  of  the 
term  volens.  The  same  can  hardly  be  said  of  a  slater 
who  is  injured  by  a  fall  from  the  roof  of  a  house, 

1  Post,  §§  188-190. 

2  Broom's  Legal  Maxims,  star  page  268. 


268  EMPLOYERS'  LIABILITY  ACTS. 

although  he  too  may  be  vohns  in  the  sense  of  Eng- 
lish law.  In  its  application  to  questions  between  the 
employer  and  the  employed,  the  maxim  as  now  used 
generally  imports  that  the  workman  had,  either  ex- 
pressly or  by  implication,  agreed  to  take  upon  himself 
the  risks  attendant  upon  the  particular  work  which 
he  was  engaged  to  perform,  and  from  which  he  has 
suffered  injury." 

In  O'Maley  v.  South  Boston  Gas  Light  Co.,  158 
Mass.  135,  136,  Mr.  Justice  Knowlton  says :  — 

"  The  doctrine  of  assumption  of  the  risk  of  his 
employment  by  an  employee  has  usually  been  con- 
sidered from  the  point  of  view  of  a  contract,  express 
or  implied ;  but  as  applied  to  actions  of  tort  for  negli- 
gence against  an  employer,  it  leads  up  to  the  broader 
principle  expressed  by  the  maxim  volenti  non  fit  in- 
juria.  One  who,  knowing  and  appreciating  a  danger, 
voluntarily  assumes  the  risk  of  it,  has  no  just  cause  of 
complaint  against  another  who  is  primarily  responsible 
for  the  existence  of  the  danger.  As  between  the  two, 
his  voluntary  assumption  of  the  risk  absolves  the  other 
from  any  particular  duty  to  him  in  that  respect,  and 
leaves  each  to  take  such  chances  as  exist  in  the  situa- 
tion, without  a  right  to  claim  anything  from  the  other. 
In  such  a  case  there  is  no  actionable  nejrlisfence  on  the 

O      O 

part  of  him  who  is  primarily  responsible  for  the  danger. 
If  there  is  a  failure  to  do  his  duty  according  to  a  high 
standard  of  ethics,  there  is,  as  between  the  parties,  no 
neglect  of  legal  duty." 

"  The  doctrine  of  volenti  non  fit  injuria  stands  out- 
side the  defence  of  contributory  negligence  and  is  in 
no  way  limited  by  it.  In  individual  instances  the  two 


DIRECTING   VERDICT   FOR  DEFENDANT.  269 

ideas  seem  to  cover  the  same  ground ;  but  carelessness 
is  not  the  same  thing  as  intelligent  choice,  and  the 
Latin  maxim  often  applies  when  there  has  been  no 
carelessness  at  all."  1  If  the  undisputed  facts  show 
that  the  plaintiff  has  assumed  the  risk,  a  verdict  should 
be  directed  for  the  defendant,  even  if  they  also  show 
that  he  has  exercised  due  care  and  diligence.2 

In  Goodes  v.  Boston  &  Albany  Ry.,  162  Mass.  287, 
288,  the  court,  speaking  through  Mr.  Justice  Morton, 
says :  "  One  entering  the  employment  of  another  as- 
sumes the  obvious  risks  arising  from  the  nature  of  the 
employment,  from  the  manner  in  which  the  business  is 
carried  on,  and  from  the  condition  of  the  ways,  works, 
and  machinery,  if  he  is  of  sufficient  capacity  to  under- 
stand and  appreciate  them.  It  is  not  necessary  to 
inquire  whether  this  doctrine  rests  upon  contract,  or 
upon  the  inherent  reasonableness  and  justice  of  the 
rule  itself,  as  applied  to  the  relations  of  master  and 
servant.  It  has  been  long  and  well  settled  at  common 
law,  and  it  is  not  contended  by  the  plaintiff  that  it 
does  not  apply  to  cases  arising  under  the  Employers' 
Liability  Act,  so  called." 

Nearly  all  the  authorities  agree  that  mere  knowledge 
of  the  risk  on  the  part  of  the  employee  is  not  suf- 
ficient to  prevent  a  recovery  under  the  statute.3  The 
maxim  is  not  scienti  nonfit  injuria,  but  volenti  nonfit 
injuria.  The  test  is  not  merely  whether  the  injured 

1  Thomas  v.  Quartermaine,  18  Q.  B.  D.  685,  697,  698,  per  Bowen, 
L.  J.  See,  also,  McPhee  v.  Scully,  163  Mass.  216,  217. 

a  Mellor  v.  Merchants'  Manuf.  Co.,  150  Mass.  362  ;  Stuart  v.  West 
End  Ry.,  163  Mass.  391. 

8  Smith  v.  Baker,  [1891]  A.  C.  325,  337  ;  Thomas  v.  Quartermaine, 
18  Q.  B.  D.  685,  696  ;  Yarmouth  v.  France,  19  Q.  B.  D.  647  ;  Mellor  v. 


270  EMPLOYERS'  LIABILITY  ACTS. 

employee  knew  of  the  risk,  but  whether  the  circum- 
stances are  such  as  necessarily  to  lead  to  the  conclusion 
that  the  whole  risk  was  voluntarily  incurred  by  him. 
If  not,  the  question  should  be  submitted  to  the  jury.1 
The  common-law  rule  is  of  like  nature.2 

§  176.  Continuance  in   Defendant's   Employ   with 
Knowledge  of  the  Risk.     (1)  English  Rule. 

Great  difference  of  opinion  has  developed  upon  the 
question  whether  or  not  the  plaintiff's  continuance  in 
the  employ  of  the  defendant,  with  knowledge  of  the 
defect  or  negligence  which  ultimately  causes  his  injury, 
will,  as  matter  of  law,  prevent  a  recovery  under  the 
Employers'  Liability  Act.  Does  he  thereby  assume  the 
risk  of  injury;  or  does  he  consent  to  or  voluntarily 
incur  the  risk  so  as  to  preclude  a  recovery  as  matter  of 
law  under  the  maxim  volenti  non  Jit  injuria  ?  Or,  on 
the  other  hand,  is  such  continuance  with  knowledge  of 
the  risk  merely  one  of  the  facts  bearing  upon  the  right 
of  action  which  should  be  submitted  to  the  jury  under 
proper  instructions?  May  the  jury  find  on  all  the  evi- 
dence that  the  plaintiff  continued  at  work,  not  because 
he  consented  to  incur  the  risk,  but  because  the  necessity 
of  his  pecuniary  condition  constrained  him  to  remain  ? 

Merchants'  Manuf.  Co.,  150  Mass.  362,  364.  Contra,  Birmingham  Ry. 
v.  Allen,  99  Ala.  359  (overruling  Mobile  &c.  Ry.  v.  Holborn,  84  Ala. 
133). 

1  Cases  cited  above. 

3  Fitzgerald  v.  Connecticut  River  Paper  Co.,  155  Mass.  155  ;  Mahoney 
v.  Dore,  155  Mass.  513 ;  Ford  v.  Fitchburg  Ry.,  110  Mass.  240  ;  Hough 
v.  Railway  Co.,  100  U.  S.  213  ;  Hawley  v.  Northern  Central  Ry.,  82 
N.  Y.  370  ;  Indianapolis  &c.  Ry.  ».  Ott,  11  Ind.  App.  564  ;  38  N.  E.  Rep. 
842  ;  Dorsey  v.  Phillips  Co.,  42  Wis.  583  ;  Flynn  v.  Kansas  City  &c.  Ry., 
78  Mo.  195.  Contra,  Eureka  Co.  v.  Bass,  81  Ala.  200. 


DIRECTING   VERDICT    FOR   DEFENDANT.  271 

In  Smith  v.  Baker,  [1891]  A.  C.  325,  the  leading 
case  under  the  English  act  of  1880,  these  questions 
were  fully  considered  by  the  House  of  Lords.  In  that 
case  the  defendants  were  railway  contractors,  and  had 
taken  a  contract  to  open  a  railway  cut.  The  plaintiff 
was  employed  by  them  to  drill  holes  in  the  rock. 
While  he  was  engaged  in  the  operation  of  drilling,  a 
stone  fell  out  of  a  crane  above  him  and  caused  the  inju- 
ries complained  of.  The  crane  had  been  worked  in  the 
same  way  over  his  head  for  several  months  before  his 
injury,  and  he  understood  the  risk  of  continuing  to 
work.  There  was  no  one  to  warn  him  when  the  crane 
was  coming  towards  him,  and  it  was  operated  by  other 
employees  of  the  defendant.  The  county  court  refused 
to  nonsuit  the  plaintiff,  on  the  ground  requested  by  the 
defendant  that  the  plaintiff  had  assumed  the  risk  and 
could  not  recover  under  the  doctrine  of  volenti  non  fit 
injuria.  The  case  was  submitted  to  the  jury,  and  a 
verdict  for  the  plaintiff  was  returned.  It  was  held  that 
the  question  was  one  of  fact  and  not  of  law ;  that  by 
continuing  in  the  service  with  knowledge  and  under- 
standing of  the  risk,  the  plaintiff  had  not  thereby 
assumed  the  risk  in  the  sense  of  preventing  a  recovery 
as  matter  of  law ;  that  the  maxim  volenti  non  Jit  injuria 
did  not  apply;  and  that  the  verdict  was  warranted  by 
the  evidence. 

Considerable  stress  was  laid  upon  the  fact  that  there 
was  no  inherent  danger  in  the  plaintiff's  work  of  drill- 
ing, and  that  his  injury  had  been  caused  by  a  defect  in 
the  machinery  used  in  another  department  over  which 
he  had  no  control. 

On  page  357,  referring  to  cases  in  which  the  work  is 


272  EMPLOYEES'  LIABILITY  ACTS. 

not  intrinsically  dangerous,  but  is  rendered  dangerous 
by  some  defect  which  it  was  the  duty  of  the  employer 
to  remedy,  Lord  Watson  says :  — 

"The  risk  may  arise  from  a  defect  in  a  machine, 
which  the  servant  has  engaged  to  work,  of  such  a 
nature  that  his  personal  danger  and  consequent  injury 
must  be  produced  by  his  own  act.  If  he  clearly  fore- 
saw the  likelihood  of  such  a  result,  and  notwithstand- 
ing continued  to  work,  I  think  that,  according  to  the 
authorities,  he  ought  to  be  regarded  as  volens.  The 
case  may  be  very  different  when  there  is  no  inherent 
peril  in  the  work  performed  by  the  servant,  and  the  risk 
to  which  he  is  exposed  arises  from  a  defect  in  the 
machinery  used  in  another  department  over  which  he 
has  no  control.  The  present  case  belongs  to  that  cate- 
gory. There  was  no  intrinsic  danger  in  the  operation 
of  drilling  in  which  the  plaintiff  was  engaged;  the 
peril  from  which  he  suffered  was  not  evoked  by  his  act, 
but  was  brought  into  contact  with  him  by  workmen 
employed  in  a  different  operation." 

The  clause  contained  in  the  various  acts  to  the  effect 
that  no  recovery  can  be  had  if  the  employee  knew  of 
the  defect  or  negligence  which  caused  his  injury  and 
failed  to  give  information  thereof  within  a  reasonable 
time,  was  deemed  by  Lord  Watson  to  show  that  the 
legislature  did  not  intend  that  an  employee,  by  merely 
continuing  in  the  service  with  knowledge  of  the  defect 
or  negligence,  should  thereby  lose  the  right  to  recover 
damages  which  he  would  otherwise  have  possessed.1 

Lord  Halsbury,  L.  C.,  in  his  opinion  in  this  case  says, 
on  page  336 :  "  For  my  own  part,  I  think  that  a  per- 

i  Smith  v.  Baker,  [1891]  A.  C.  325,  355,  356. 


DIRECTING   VERDICT   FOR   DEFENDANT.  273 

son  who  relies  on  the  maxim  must  show  a  consent  to 
the  particular  thing  done.  Of  course  I  do  not  mean 
to  deny  that  a  consent  to  the  particular  thing  may  be 
inferred  from  the  course  of  conduct,  as  well  as  proved 
by  express  conduct ;  but  if  I  were  to  apply  my  proposi- 
tion to  the  particular  facts  of  this  case,  I  do  not  believe 
that  the  plaintiff  ever  did  or  would  have  consented  to 
the  particular  act  done  under  the  particular  circum- 
stances. He  would  have  said :  i  I  cannot  look  out  for 
myself  at  present.  You  are  employing  me  in  a  form 
of  employment  in  which  I  have  not  the  ordinary  means 
of  looking  out  for  myself ;  I  must  attend  to  my  drill. 
If  you  will  not  give  me  warning  when  the  stone  is  going 
to  be  slung,  at  all  events  let  me  look  out  for  myself, 
and  do  not  place  me  under  a  crane  which  is  lifting 
heavy  stones  over  my  head  when  you  keep  my  attention 
fixed  upon  an  operation  which  prevents  me  looking  out 
for  myself.' ' 

Again,  on  page  338,  Lord  Halsbury  says:  "As  I 
have  intimated  before,  I  do  not  deny  that  a  particular 
consent  may  be  inferred  from  a  general  course  of  con- 
duct. Every  sailor  who  mounts  the  rigging  of  a  ship 
knows  and  appreciates  the  risk  he  is  encountering. 
The  act  is  his  own,  and  he  cannot  be  said  not  to  con- 
sent to  the  thing  which  he  himself  is  doing.  And 
examples  might  be  indefinitely  multiplied  where  the 
essential  cause  of  the  risk  is  the  act  of  the  complaining 
plaintiff  himself,  and  where,  therefore,  the  application 
of  the  maxim  volenti  non  fit  injuria  is  completely  jus- 
tified." 


274  EMPLOYERS'  LIABILITY  ACTS. 

§  177.  Same.     Same. 

In  Yarmouth  v.  France,  19  Q.  B.  D.  647,  the  plain- 
tiff, while  in  the  employ  of  the  defendant  as  a  driver, 
was  kicked  by  a  vicious  horse.  He  knew  the  horse  to 
be  vicious,  and  had  complained  of  it  many  times  to  the 
defendant's  foreman.  The  foreman  told  him  to  go  on 
driving  the  horse,  and  that  if  any  accident  happened  to 
the  plaintiff  the  employer  would  be  responsible.  In  an 
action  under  the  English  Employers'  Liability  Act,  it 
was  held  by  a  majority  of  the  court  (Lopes,  L.  J.,  dis- 
senting) that  the  fact  that  the  plaintiff  remained  in  the 
defendant's  employ,  with  knowledge  and  appreciation  of 
the  risk  of  injury  from  the  horse,  did  not  show  as  mat- 
ter of  law  that  he  had  voluntarily  incurred  the  risk,  so 
as  to  prevent  a  recovery  under  the  maxim  volenti  non 
fit  injuria  ;  that  the  question  was  one  of  fact  for  the 
jury  to  determine;  and  that  the  jury  would  have  been 
justified  in  finding  for  the  plaintiff. 

Lindley,  L.  J.,  says  on  page  661 :  "If  nothing  more 
is  proved  than  that  the  workman  saw  danger,  reported 
it,  but,  on  being  told  to  go  on,  went  on  as  before,  in 
order  to  avoid  dismissal,  a  jury  may  in  my  opinion 
properly  find  that  he  had  not  agreed  to  take  the  risk, 
and  had  not  acted  voluntarily  in  the  sense  of  having 
taken  the  risk  upon  himself.  Fear  of  dismissal,  rather 
than  voluntary  action,  might  properly  be  inferred." 

In  the  much-discussed  case  of  Thomas  v.  Quarter- 
maine,  18  Q.  B.  D.  685,  the  plaintiff  was  scalded  by  fall- 
ing into  a  cooling  vat  in  the  defendant's  brewery,  while 
he  was  pulling  a  board  from  under  an  adjacent  boiling 
vat.  He  was  employed  in  the  cooling  room,  in  which 


DIRECTING   VERDICT   FOR  DEFENDANT.  275 

there  was  a  cooling  vat  and  a  boiling  vat,  between  a 
part  of  which  the  passageway  was  only  three  feet  wide. 
The  cooling  vat  had  a  rim  of  sixteen  inches  above  the 
passage,  but  it  was  not  fenced  or  railed  in.  A  board 
which  was  used  as  a  lid  to  the  cooling  vat  being  under 
the  boiling  vat,  the  plaintiff  took  hold  of  it  to  pull  it 
out :  the  board  stuck ;  the  plaintiff  gave  a  harder  pull 
and  the  board  came  out  suddenly,  causing  the  plaintiff 
to  fall  back  into  the  cooling  vat.  He  had  worked  in 
the  room  for  many  months,  and  knew  its  condition  as 
well  as  the  defendant.  In  an  action  under  the  Em- 
ployers' Liability  Act  for  failure  to  fence  the  vat,  it 
was  held  by  Bowen  and  Fry,  L.  JJ.  (Lord  Esher,  M.  R., 
dissenting),  that  the  maxim  volenti  non  fit  injuria 
applied  to  the  case,  and  that  therefore  there  was  no 
sufficient  evidence  of  negligence  to  warrant  a  finding 
for  the  plaintiff,  and  the  defendant  was  entitled  to 
judgment.  In  the  opinion  of  Bowen,  L.  J.,  after  stat- 
ing that  mere  knowledge  of  the  danger  by  the  plaintiff 
is  not  a  conclusive  defence  in  itself,  he  adds  on  page 
697  :  "  But  when  it  is  a  knowledge  under  circumstances 
that  leave  no  inference  open  but  one,  viz.,  that  the  risk 
has  been  voluntarily  encountered,  the  defence  seems  to 
me  complete." 

If  Thomas  v.  Quartermaine,  18  Q.  B.  D.  685,  decides 
that  the  mere  fact  that  the  plaintiff  continues  to  work 
on  the  defendant's  premises  after  he  knows  their  defec- 
tive condition  is  conclusive  evidence  of  his  assumption 
of  the  risk,  and  precludes  a  recovery  under  the  act, 
although  there  has  been  a  breach  of  duty  on  the  defend- 
ant's part,  the  decision  can  scarcely  be  reconciled  with 
Smith  v.  Baker,  [1891]  A.  C.  325,  and  others.  It 


276  EMPLOYEES'  LIABILITY  ACTS. 

seems  possible,  however,  to  reconcile  it  with  Smith  v. 
Baker  on  the  ground  that  there  was  no  negligence  on 
the  part  of  the  defendant.  Bowen,  L.  J.,  states,  near 
the  conclusion  of  his  opinion,  on  page  699 :  "  There 
was,  therefore,  in  my  opinion,  no  evidence  of  negli- 
gence on  which  the  county  court  judge  could  act,  and 
therefore  the  appeal  should  be  dismissed  with  costs." 
And  on  pages  702,  703,  Fry,  L.  J.,  says :  "  For  the 
reasons  I  have  given  I  think  that  there  was  no  negli- 
gence of  the  defendant  from  which  the  defect  arose,  or 
which  was  the  cause  of  its  not  being  discovered  or  rem- 
edied ;  and  on  this  ground  I  think  the  defendant  is  not 
liable.  .  .  .  Further,  I  think  that  on  the  whole  of  this 
case  there  was  no  evidence  to  support  the  finding  of 
the  county  court  judge  that  there  was  a  defect  in  the 
ways  due  to  the  negligence  of  the  defendant." 

Other  parts  of  the  opinions,  however,  strongly  sup- 
port the  view  adopted  by  the  reporter  in  his  head-note, 
namely,  that  there  was  no  sufficient  evidence  to  warrant 
a  finding  of  defendant's  negligence,  because  the  doctrine 
of  volenti  non  Jit  injuria  applied  to  the  case,  thus 
confounding  two  matters  which  were  held  in  Smith  v. 
Baker  to  be  separate  and  distinct  defences.  If  there 
was  not  sufficient  evidence  of  the  defendant's  negli- 
gence, that  ended  the  case  in  his  favor,  and  it  was 
unnecessary  to  consider  the  other  defence  founded  upon 
the  maxim. 

In  Baddeley  v.  Granville,  19  Q.  B.  D.  423,  it  was 
decided  that  where  the  injury  is  caused  by  the  breach 
of  an  express  statutory  duty  on  the  defendant's  part,  as 
failure  to  keep  a  man  at  the  mouth  of  a  coal-pit,  the 
doctrine  of  volenti  non  Jit  injuria  does  not  apply  to 
actions  under  the  Employers'  Liability  Act. 


DIRECTING   VERDICT   FOR   DEFENDANT.  277 

Weblin  v.  Ballard,  17  Q.  B.  D.  122,  goes  too  far 
in  holding  that  the  English  act  has  entirely  abolished 
the  common-law  defence  of  assumption  of  risk  for  an 
injury  caused  by  a  defect  in  the  condition  of  the  ways, 
works,  etc.,  though  the  ruling  that  it  has  abolished  the 
defence  of  common  employment,  as  applied  to  the  per- 
sons mentioned  in  the  act,  has  been  sustained  by  the 
later  decisions. 

§  178.  Same.  Same.  Statutory  Defects. 
The  doctrines  of  assumption  of  risk  and  volenti  non 
fit  injuria  have  no  application  to  the  case  of  a  breach 
of  a  specific  statutory  duty  imposed  upon  the  employer, 
and  the  fact  that  the  plaintiff  continues  in  the  defend- 
ant's employ  with  knowledge  of  the  breach  and  with- 
out objection  will  not  prevent  his  recovery  under  the 
Employers'  Liability  Act  for  an  injury  caused  by  such 
breach.  In  Baddeley  v.  Granville,  19  Q.  B.  D.  423, 
the  Coal  Mines  Regulation  Act,  1872,  required  a  banks- 
man to  be  kept  at  the  mouth  of  a  coal-pit  while  the 
miners  were  going  up  or  down  the  shaft.  The  plain- 
tiff's husband  was  killed  while  coming  out  of  the  shaft 
at  night,  through  an  improper  signal  given  by  a  boy  to 
the  engineer  in  charge  of  the  cage,  no  banksman  being 
present  as  required  by  the  statute.  In  an  action  under 
the  Employers'  Liability  Act,  1880,  it  was  held  that 
the  fact  that  the  deceased  knew  that  no  banksman  was 
employed  by  the  defendant  at  night,  and  continued  to 
work  at  the  mine,  did  not  constitute  a  defence  to  the 
action.  Wills,  J.,  says  on  pages  426,  427  :  "  An  obli- 
gation imposed  by  statute  ought  to  be  capable  of 
enforcement  with  respect  to  all  future  dealings  between 


278  EMPLOYERS'  LIABILITY  ACTS. 

parties  affected  by  it.  As  to  the  result  of  past  breaches 
of  the  obligation,  people  may  come  to  what  agreements 
they  like ;  but  as  to  future  breaches  of  it,  there  ought 
to  be  no  encouragement  given  to  the  making  of  an 
agreement  between  A  and  B  that  B  shall  be  at  liberty 
to  break  the  law  which  has  been  passed  for  the  protec- 
tion of  A.  Such  an  agreement  might  be  illegal,  though 
I  do  not  hold  as  a  matter  of  law  that  it  would  be  so. 
But  it  seems  to  me  that  if  the  supposed  agreement 
between  the  deceased  and  the  defendant,  in  consequence 
of  which  the  principle  of  volenti  non  Jit  injuria  is 
sought  to  be  applied,  comes  to  this,  that  the  master 
employs  the  servant  on  the  terms  that  the  latter  shall 
waive  the  breach  by  the  master  of  an  obligation  imposed 
on  him  by  statute,  and  shall  connive  at  his  disregard  of 
the  statutory  obligation  imposed  on  him  for  the  benefit 
of  others  as  well  as  of  himself,  such  an  agreement 
would  be  in  violation  of  public  policy  and  ought  not  to 
be  listened  to.  On  that  ground  there  is  much  to  be 
said  in  favor  of  the  opinion  expressed  in  the  Court  of 
Appeal  that,  where  there  has  been  a  breach  by  a  defend- 
ant of  a  statutory  obligation,  the  maxim  volenti  non  Jit 
injuria  has  no  application."  1 

§  179.  Same.     (2)  Alabama  Rule.     Early  Cases. 

In  Alabama  the  early  cases  went  to  one  extreme  in 
holding  that  knowledge  and  appreciation  of  the  defect 
or  danger  was  in  no  case  an  assumption  of  the  risk,  and 
that  the  maxim  volenti  non  fit  injuria  did  not  apply  to 
actions  under  the  Employers'  Liability  Act  where  the 

1  Referring  to  Thomas  v.  Quartermaine,  18  Q.  B.  D.  685.     See,  also, 
Blamires  v.  Lancashire  &c.  Ry.,  L.  R.  8  Ex.  283. 


DIRECTING   VERDICT   FOR   DEFENDANT.  279 

employer  was  aware  of  the  defect  and  negligently  failed 
to  remedy  it.1  The  only  case  in  which  the  maxim  was 
held  to  apply  was  when  the  employee  himself  created 
the  defect,  or  consented  to  its  creation  by  a  third  person.2 

In  Highland  Avenue  &c.  Ry.  v.  Walters,  91  Ala. 
435,  a  yard-master  and  conductor  was  killed  by  being 
thrown  from  the  foot-board  of  an  engine  on  which  he 
was  standing,  caused,  as  the  plaintiff  alleged,  by  a  pile 
of  coal  which  was  left  so  near  the  track  as  to  obstruct 
the  passage  of  the  engine.  One  count  was  for  a  defect 
in  the  condition  of  the  ways  of  the  railroad,  and  another 
was  for  the  negligence  of  defendant's  superintendent 
in  allowing  the  coal  to  remain  there.  The  coal  belonged 
to  one  Peebles,  who  testified  that  it  was  deposited  there 
by  permission  of  the  deceased.  The  chief  defence  was 
contributory  negligence. 

In  delivering  the  court's  opinion,  Mr.  Justice  Clop- 
ton  says,  on  pages  441,  442  :  "  In  railroading  there  are 
known  perils  incident  to  the  service,  no  matter  how 
well  constructed  the  plant,  works,  and  machinery  may 
be,  or  how  watchful  and  diligent  the  control  and  man- 
agement of  the  trains.  To  these  the  statute  has  no 
application,  and  of  these  the  employee  takes  the  risk. 
When,  however,  an  employee  sustains  injury  in  the  cases 
and  under  the  conditions  specified  in  the  statute,  it  oper- 
ates to  take  from  the  employer  the  defence  that  the 
employee  impliedly  contracts  to  assume  the  known  and 
ordinary  risks  incident  to  his  employment.  To  this 
extent,  and  to  this  extent  only,  is  the  common-law  rule 
abrogated.  By  the  provisions  of  the  statute,  the  em- 

1  Mobile  &c.  Ry.  v.  Holborn,  84  Ala.  133. 

8  Highland  Avenue  Ry.  v.  Walters,  91  Ala.  435. 


280  EMPLOYERS'  LIABILITY  ACTS. 

ployer  is  answerable  in  damages  when  the  defect  in  the 
condition  of  the  ways,  works,  machinery,  or  plant  arose 
from,  or  had  not  been  discovered  or  remedied  owing  to 
the  negligence  of  the  employer,  or  person  to  whom  is 
entrusted  the  duty  of  seeing  that  they  are  in  proper  con- 
dition ;  and  is  exempted  from  liability  when,  not  being 
aware  of  the  defect  or  negligence,  the  employee  has 
failed  to  give  information  thereof  within  a  reasonable 
time  after  discovering  it.  Under  this  construction,  con- 
tributory negligence  cannot  be  imputed  to  an  employee 
from  continuance  in  the  service  after  merely  discovering 
a  defect  or  negligence,  though  it  may  increase  the  risk 
of  injury.  Something  more  is  requisite,  —  concurring 
failure  to  give  information  thereof  within  a  reasonable 
time  after  knowledge  of  the  defect  or  negligence,  unless 
the  employee  knows  that  the  employer  or  superior  is 
already  aware  of  it." 

§  180.  Same.  Same.  Late  Cases. 
But  these  early  cases  have  since  been  expressly  over- 
ruled, and  the  Alabama  court  has  gone  to  the  opposite 
extreme,  and  now  holds  that  an  employee  who  contin- 
ues in  the  service  with  knowledge  of  a  defect  in  the 
condition  of  the  ways,  works,  or  machinery,  though 
such  defect  exists  in  the  ways,  works,  or  machinery  of 
another  department  over  which  he  has  no  control, 
assumes  the  risk  of  injury  therefrom,  after  the  lapse  of 
a  reasonable  time  for  remedying  the  defect,  and  that 
the  doctrine  of  volenti  non  fit  injuria  applies  to  pre- 
vent a  recovery  by  him,  and  was  not  changed  by  the 
Employers'  Liability  Act.1 

1  Birmingham  Ry.  v.  Allen,  99  Ala.  359. 


DIRECTING  VERDICT   FOR  DEFENDANT.  281 

In  this  case  of  Birmingham  Ry.  v.  Allen,  99  Ala. 
359,  a  conductor  in  the  employ  of  the  defendant  rail- 
road was  thrown  from  his  train  while  on  duty  by  the 
sudden  turn  or  jerk  of  the  train  caused  by  its  running 
on  to  a  side  track  from  the  main  track  because  the 
switch  had  been  left  open.  The  defect  in  the  switching 
apparatus  was  the  want  of  a  lock  or  other  sufficient 
means  of  fastening  the  switch.  The  plaintiff  had 
known  of  this  defect  for  a  year  prior  to  his  injury.  It 
was  held  that  the  want  of  a  switch-lock  was  a  "defect" 
within  the  meaning  of  the  statute,  but  that  the  plain- 
tiff, by  continuing  in  the  defendant's  employ  for  more 
than  a  reasonable  time  with  knowledge  of  the  defect, 
had  assumed  the  risk  of  injury  incident  to  such  defect ; 
that  the  maxim  volenti  nonfit  injuria  applied,  and  that 
the  plaintiff  could  not  recover  as  matter  of  law.  In 
this  case  the  court  claims  to  be  following  the  English 
rule.  Smith  v.  Baker,  [1891]  A.  C.  325,  is  not  cited, 
however,  and  the  decision  seems  to  be  contrary  to  that 
in  Smith  v.  Baker. 

The  qualifying  clause  of  the  statute,  providing  in 
substance  that  an  employee  shall  not  recover  under  the 
act  if  he  knew  of  the  defect  or  negligence  causing  his 
injury  and  failed  to  give  notice  thereof,  was  held  by 
the  court  not  to  prevent  the  application  of  the  maxim 
to  the  facts  of  the  case,  and  the  reasoning  of  fiowen, 
L.  J.,  in  Thomas  v.  Quartermaine,  18  Q.  B.  D.  685,  on/ 
this  point,  was  said  to  be  "convincing."  (Page  374.) 
Referring  to  this  provision,  the  court  states  on  pages 
374,  375,  by  Mr.  Justice  Coleman :  "  It  would  seem 
that  the  legislature,  by  a  statutory  enactment,  recog- 
nized the  application  of  the  maxim  of  volenti  nonfit 


282  EMPLOYEES'  LIABILITY  ACTS. 

injuria  as  declared  by  the  court,  and,  out  of  abundant 
caution  lest  the  statute  might  be  construed  to  give  a 
cause  of  action  absolutely  when  the  defect  or  negli- 
gence specified  in  the  statute  was  the  cause  of  injury, 
although  the  risk  of  such  defect  and  negligence  was 
voluntarily  and  knowingly  assumed  by  the  employee, 
added  the  proviso  above  referred  to." 

In  the  later  cases  of  Louisville  &c.  Ry.  v.  Banks,  103 
Ala.  000 ;  16  So.  Rep.  547,  and  Louisville  &c.  Ry.  v. 
Stutts,  104  Ala.  000 ;  17  So.  Rep.  29,  the  doctrine  of 
Birmingham  Ry.  v.  Allen,  99  Ala.  359,  was  reaffirmed, 
and  seems  now  to  be  the  settled  rule  in  Alabama.  In 
the  case  of  Louisville  &c.  Ry.  v.  Banks,  supra,  a 
freight  brakeman  was  knocked  off  the  top  of  a  car  by 
a  low  bridge  and  killed.  The  maintenance  of  such  a 
bridge  was  held  to  be  prima  facie  negligence  on  the 
part  of  the  railroad  company,  for  which  it  would  have 
been  liable  under  the  statute  to  one  not  familiar  with 
the  bridge;  but  inasmuch  as  the  deceased  had  been 
warned  about  the  bridge,  and  had  passed  under  it  about 
one  hundred  times  in  the  course  of  his  four  months' 
employment,  it  was  held  that  he  had  assumed  the  risk 
of  injury,  and  that  a  verdict  should  have  been  ordered 
for  the  defendant.  Mr.  Justice  Haralson  says,  on  page 
549,  in  delivering  the  court's  opinion  :  "Another  prin- 
ciple which  may  be  considered  as  finally  settled  is  that 
if  an  employee  knows  of  the  existence  of  dangers  aris- 
ing from  defects  in  ways,  works,  and  machinery  of  the 
company,  and  continues  in  its  service  after  the  lapse 
of  a  reasonable  time  for  the  defects  to  be  remedied  or 
removed,  he  assumes  this  additional  risk,  though  not 
incident  to  his  original  employment  even." 


DIRECTING   VERDICT   FOR   DEFENDANT.  283 

At  common  law  the  employee  was  deemed  to  assume 
the  known  and  ordinary  risks  incident  to  his  employ- 
ment. For  an  injury  caused  by  such  dangers  he  could 
not  recover  damages  from  his  employer. 

The  Alabama  Employers'  Liability  Act  abrogates 
this  rule  of  the  common  law  in  part,  but  not  to  the 
extent  of  making  the  employer  liable  for  an  injury 
caused  by  a  known  danger  against  which  human  skill 
and  caution  cannot  provide.  The  statute  gives  the 
employee  no  remedy  in  the  latter  case ;  for  there  is  no 
negligence  of  the  employer,  nor  of  any  person  for 
whose  negligence  the  statute  makes  him  liable.  "  The 
scope  and  operation  of  the  statute  is  to  make  the 
employer  answerable  in  damages  for  an  injury  caused 
by  his  own  negligence,  or  the  negligence  of  a  co-em- 
ployee of  the  same  or  superior  grade,  in  the  enumerated 
classes  of  cases."  l 

§  181.  Same.     (3)  Massachusetts  Rule.     Absence  of 
Guard-rail,  or  other  Safety  Appliance. 

In  Massachusetts  the  court  has  been  careful  to  decide 
each  case  on  its  particular  facts,  and  has  refrained  from 
announcing  any  broad  or  general  rules  upon  this  diffi- 
cult question.  The  effect  of  continuing  to  work  with 
knowledge  of  the  absence  of  certain  safety  appliances 
has,  however,  been  several  times  decided  by  this  court- 

The  Massachusetts  statute  of  1895,  ch.  362,  relates  to 
railroad  corporations  and  certain  defects  and  dangers  in 
their  rolling-stock.  Upon  this  question  of  assuming 
the  risk  of  injury  by  continuing  to  work  with  know- 
ledge of  the  risk,  the  statute  declares  in  section  7 : 

1  Mobile  &c.  Ry.  v.  George,  94  Ala.  199,  218,  per  Clopton,  J. 


284:  EMPLOYERS'  LIABILITY  ACTS. 

"  Any  employee  of  such  corporation  who  may  he  in- 
jured by  any  locomotive,  car,  or  train  in  use  contrary  to 
the  provision  of  this  act,  shall  not  be  deemed  thereby 
to  have  assumed  the  risk  thereby  occasioned,  although 
continuing  in  the  employment  of  such  corporation  after 
the  unlawful  use  of  such  locomotive,  car,  or  train  has 
been  brought  to  his  knowledge." 

In  general  it  may  be  stated  that  where  the  absence  of 
the  guard-rail,  etc.,  is  known  to  the  employee,  and  its 
danger  appreciated  by  him,  it  constitutes  an  obvious 
danger,  and,  if  he  is  injured  thereby,  the  employer  is 
not  liable  under  the  act.  By  continuing  to  work  on 
such  defective  ways,  works,  or  machinery,  without  giv- 
ing information  thereof,  the  employee  assumes  the  risk 
resulting  from  the  absence  of  the  guard  or  rail;  the 
doctrine  of  volenti  non<fit  injuria  applies,  and  a  verdict 
should  be  ordered  for  the  defendant. 

In  O'Maley  v.  South  Boston  Gas  Light  Co.,  158 
Mass.  135,  the  defect  in  the  defendant's  coal-run  con- 
sisted in  not  providing  guards  on  the  runs,  by  reason  of 
which  the  plaintiff  alleged  that  while  wheeling  coal  in  a 
barrow,  he  fell  off  the  run  and  was  injured.  At  vari- 
ous times  during  the  previous  fifteen  years  the  plaintiff 
had  done  the  same  work,  and  the  runs  had  been  in  the 
same  condition.  The  court  held  that  the  plaintiff  had 
assumed  the  risk,  that  the  maxim  volenti  nonfit  injuria 
applied,  and  that  a  verdict  was  properly  ordered  for  the 
defendant. 

In  Toomey  v.  Donovan,  158  Mass.  232,  the  machine 
had  no  automatic  guard  to  prevent  the  head-block  from 
falling  down  in  case  the  machine  got  out  of  order,  by 
reason  of  which  the  plaintiff  was  injured.  At  the  trial 


DIRECTING   VERDICT   FOR   DEFENDANT.  285 

the  plaintiff  offered  to  prove  that  for  a  long  time  prior 
to  his  injury  such  guards  had  been  in  use  upon  such 
machines,  and  that  the  defendants  knew  of  them,  and 
that  the  plaintiff  did  not.  For  a  part  of  three  years 
prior  to  the  accident  the  plaintiff  had  worked  upon  a 
machine  like  the  one  upon  which  he  was  injured,  and 
he  knew  that  there  was  no  guard.  He  was  twenty-five 
years  old,  and,  for  aught  that  appeared,  of  ordinary 
intelligence.  It  was  held,  in  an  action  under  the  stat- 
ute, that  the  testimony  offered  was  properly  excluded, 
for  the  following  reasons,  as  stated  by  Mr.  Justice 
Morton  for  the  court  on  page  237  :  — 

"  The  fact  that  there  was  no  guard  was  an  obvious 
one ;  and,  in  working  on  the  machine,  he  must  be  held 
to  have  assumed  the  risk  resulting  from  the  absence  of 
a  guard.  Whether  he  did  or  did  not  know  that  auto- 
matic guards  were  in  use  on  such  machines  was  imma- 
terial. He  agreed  to  work  on  the  machine  as  it  was, 
and  the  defendants  owed  no  duty  to  him  to  put  on 
the  guard.  Having  assumed  the  risk  of  operating  the 
machine  without  a  guard,  the  plaintiff  cannot  now 
claim  that  one  should  have  been  put  on." 

In  Gleason  v.  New  York  &c.  Ry.,  159  Mass.  68,  the 
plaintiff,  a  switchman,  was  injured  by  having  his  foot 
caught  in  a  hole  in  the  planking  of  the  defendant's 
passenger  -  yard,  where  he  had  worked  for  six  weeks. 
During  that  time  he  had  been  in  the  habit  of  throwing 
the  switch  at  the  hole  where  he  was  hurt.  The  hole 
was  there  when  his  employment  began,  and  was  per- 
fectly open  to  view  and  obvious.  In  this  action  under 

1  Citing  Pingree  v.  Leyland,  135  Mass.  398,  and  Moulton  v.  Gage,  138 
Mass.  390. 


286  EMPLOYERS'  LIABILITY  ACTS. 

the  Employers'  Liability  Act  the  jury  returned  a  ver- 
dict for  the  plaintiff ;  but  the  full  court  set  it  aside, 
on  the  ground  that  the  plaintiff  must  be  deemed  to 
have  assumed  the  risk  of  an  obvious  danger.  Hannah 
v.  Connecticut  River  Ry.,  154  Mass.  529,  was  distin- 
guished on  the  ground  that  a  temporary  hole  in  the 
roadbed  was  formed  after  the  plaintiff's  employment 
began,  and  had  been  there  but  a  short  time  and  had 
not  been  noticed  by  him.  Under  these  facts  it  was 
held  that  the  plaintiff  had  not  assumed  the  risk  as 
matter  of  law,  and  a  verdict  in  his  favor  was  allowed  to 

stand. 

§  182.   Obvious  Danger. 

At  common  law  the  rule  is  well  settled  that  an 
employee  assumes  the  obvious  risks  of  his  employment, 
and  cannot  recover  for  an  injury  caused  by  an  obvious 
danger  which  was  known  to  and  appreciated  by  him.1 
The  same  rule  applies  under  the  Employers'  Liability 
Acts.2 

In  Fisk  v.  Fitchburg  Ry.,  158  Mass.  238,  a  freight 
brakeman,  while  descending  a  side  ladder,  was  struck 
by  a  projecting  awning  at  one  of  the  defendant's  sta- 
tions and  injured.  He  had  been  employed  by  the  road 
about  two  years,  and  was  acquainted  with  that  station 

1  Goodes  v.  Boston  &  Albany   Ry.,  162  Mass.  287  ;   Goldthwait  v. 
Haverhill  &c.  Ry.,  160  Mass.  554  ;  Connolly  v.  Eldredge,  160  Mass.  566  ; 
Kleinest  v.  Kunhardt,  160  Mass.  230  ;    Wilson  v.  Tremont  &  Suffolk 
Mills,  159  Mass.  154  ;  Fitzgerald  v.  Connecticut  River  Paper  Co.,  155 
Mass.  155  ;  Mahoney  v.  Dore,  155  Mass.  513  ;  Vincennes  Water  Co.  v. 
White,  124  Ind.  376  ;  Naylor  v.  Chicago  &c.  Ry.,  53  Wis.  661  ;  Olson 
v.  McMullen,  34  Minn.  94. 

2  Gleason  v.  New  York  &c.  Ry.,  159  Mass.  68  ;  O'Maley  v.  South  Bos- 
ton Gas  Light  Co.,  158  Mass.  135  ;  Connelly  v.  Hamilton  Woollen  Co.,  163 
Mass.  156  ;  Cassady  v.  Boston  &  Albany  Ry.,  164  Mass.  168. 


DIRECTING   VERDICT   FOR   DEFENDANT.  287 

and  knew  there  was  an  awning  there.  The  awning  was 
of  the  ordinary  kind,  and  had  not  been  changed  for 
the  worse  during  the  plaintiff's  term  of  employment. 
It  was  held  that  the  employer  was  not  liable  at  common 
law,  because  the  risk  was  one  which  the  plaintiff  must 
be  deemed  to  have  assumed ;  and  that  the  employer 
was  not  liable  under  the  statute,  because  "the  duty  of 
altering  the  awnings  upon  its  stations  was  not  cast  upon 
the  defendant  by  the  enactment  of  the  statute."1 

In  Louisville  &c.  Ry.  v.  Stutts,  104  Ala.  000 ;  17  So. 
Rep.  29,  a  locomotive  engineer,  while  engaged  in  shift- 
ing cars  from  a  track  to  a  trestle,  lost  control  of  his 
engine,  which  ran  with  great  speed  and  force  against 
the  stop-block  at  the  end  of  the  trestle,  threw  him  a 
distance  of  twenty  or  thirty  feet  to  the  ground,  and 
caused  his  death.  The  defects  complained  of  were 
that  the  trestle  was  too  high  and  too  short  for  safety 
in  shifting  cars.  It  was  twenty  or  thirty  feet  high  at 
the  end,  and  about  one  hundred  and  twenty  feet  long. 
The  uncontradicted  evidence  showed  that  one  hundred 
and  twenty  feet,  though  somewhat  short,  was  sufficient 
space  within  which  to  handle  an  engine  if  done  with 
care,  and  that  the  deceased  had  done  it  for  two  weeks 
without  accident  at  this  same  place.  It  was  held  in  an 
action  under  the  Employers'  Liability  Act  that  the 
dangers  were  open  and  obvious  to  any  one  of  fair 
intelligence,  that  the  deceased  assumed  the  risk  of 
injury  therefrom,  and  that  a  verdict  should  have  been 
ordered  for  the  defendant. 

"  This  rule  is  especially  applicable  when  the  danger 
does  not  arise  from  the  defective  condition  of  the  per- 

1  Per  Allen,  J.,  for  the  court,  at  page  239. 


288  EMPLOYERS'  LIABILITY  ACTS. 

manent  ways,  works,  or  machinery  of  the  master,  but 
from  the  manner  in  which  these  are  used,  and  when 
the  existence  of  the  danger  could  not  well  be  antici- 
pated, but  must  be  ascertained  by  observation  at  the 
time."  1 

In  Sullivan  v.  Fitchburg  Ry.,  161  Mass.  125,  a  track- 
man was  killed  by  a  "  wild  "  engine,  so  called,  i.  e.  one 
which  runs  outside  of  any  schedule  time.  The  deceased 
and  several  others  were  engaged  in  pushing  a  small 
platform  car  upon  which  they  had  their  tools  for  repair- 
ing the  track.  The  wild  engine  came  around  a  curve 
suddenly,  and  before  the  deceased  could  get  out  of  the 
way  he  was  struck  and  killed.  In  an  action  under  the 
Employers'  Liability  Act,  it  appearing  that  it  was  a 
part  of  the  duty  of  trackmen  to  look  out  for  "  wild  " 
engines,  a  majority  of  the  court  held  that  the  trackmen 
assumed  the  risk  of  such  danger,  and  that  the  railroad 
company  was  not  liable. 

§  183.  Same.    Ignorance  of  Plaintiff,  and  Failure  to 
Warn  him  of  Increased  Danger. 

When  the  danger  is  not  hidden  or  in  the  nature  of  a 
trap,  but  is  in  plain  sight  of  the  employee  while  in  the 
ordinary  discharge  of  his  duties,  the  fact  that  he  did 
not  see  the  defect  or  danger,  or  know  of  its  existence 
before  his  injury,  is  not  sufficient  to  entitle  him  to  go 
to  the  jury.2  Nor  does  the  fact  that  the  plaintiff  was 

1  Lothrop  v.  Fitchbnrg  Railroad,  150  Mass.  423,  425,  per  Field,  J. 

2  Thain  v.  Old  Colony  Ry.,  161  Mass.  353  ;  Austin  v.  Boston  &  Maine 
Ry.,  164  Mass.  282  ;  Lovejoy  v.  Boston  &  Lowell  Ry.,  125  Mass.  79 ; 
Goldthwait  v.  Haverhill  &c.  Ry.,  160  Mass.  554  ;  Griffin  v.  Ohio  &c.  Ry., 
124  Ind.  326  ;  Hathaway  v.  Michigan  Central  Ry.,  51  Mich.  253  ;  Peder- 
son  v.  Rushford,  41  Minn.  289. 


DIRECTING   VERDICT   FOR  DEFENDANT.  289 

ignorant  of  the  precise  extent  of  the  danger,1  or  of 
the  character  of  the  injury  he  might  sustain,2  prevent 
the  presiding  justice  from  directing  a  verdict  for  the 
defendant,  on  the  ground  that  the  plaintiff  had  assumed 
the  risk. 

In  East  Tennessee  &c.  Ry.  v.  Turvaville,  97  Ala.  122, 
a  brakeman,  while  coupling  cars  with  double  buffers, 
was  crushed  between  them.  He  had  had  some  experi- 
ence in  coupling  cars  with  single  buffers,  but  none  in 
coupling  cars  with  double  buffers,  which  it  appeared 
were  more  dangerous  to  couple ;  nor  did  he  know 
before  his  injury  that  these  cars  had  double  buffers. 
His  injury  was  received  during  the  first  night  of  his 
employment.  He  had  received  no  instruction  that 
double  buffers  were  more  hazardous  than  single  ones. 
In  an  action  under  the  Employers'  Liability  Act  it  was 
held  that  the  danger  was  an  obvious  one,  open  to  the 
ordinary  observation  of  any  one  using  reasonable  care 
and  prudence,  and  that  the  failure  of  the  defendant 
or  its  yard-master  to  warn  the  plaintiff  of  the  increased 
danger  did  not  render  the  defendant  liable.3 

So,  if  a  man  employed  in  the  car-house  of  a  street 
railroad  company  is  caught  and  injured  between  two 
long  open  cars  swinging  towards  each  other  on  a  curve 
at  the  entrance  to  the  car-house,  the  fact  that  the  risk 
was  increased  after  his  employment  commenced,  and 
only  one  month  before  his  injury,  by  the  use  of  long 
open  cars  in  the  place  of  short  closed  cars,  will  not 

1  Connelly  v.  Hamilton  Woollen  Co.,  163  Mass.  156  ;  Flynn  v.  Campbell, 
160  Mass.  128. 

2  Feely  v.  Pearson  Cordage  Co.,  161  Mass.  426. 

8  See,  also,  Louisville  &c.  Ry.  v.  Banks,  103  Ala.  000 ;  16  So.  Rep.  547  ; 
Hathaway  v.  Michigan  Central  Ry.,  51  Mich.  253. 


290  EMPLOYEES'  LIABILITY  ACTS. 

entitle  him  to  go  to  the  jury,  and  a  verdict  should  be 
ordered  for  the  defendant,  upon  the  ground  that  the 
plaintiff  had  assumed  the  risk  of  an  obvious  danger  if 
he  continued  to  work  without  protest  or  promise  of 
change.1 

When,  however,  the  defect  or  danger  is  concealed,2 
or  has  existed  for  a  very  short  time  without  the  em- 
ployee's knowledge,3  the  plaintiff  may  be  entitled  to  go 
to  the  jury.  So,  also,  when  the  injured  employee  is 
young  or  inexperienced,  and  the  defendant  has  omit- 
ted to  give  him  proper  instructions  and  warning  of  an 
increased  danger,  the  plaintiff  may  be  entitled  to  go  to 
the  jury,  even  if  the  increased  danger  was  caused  by  a 
fellow-servant.4  Nor  does  an  employee,  even  if  he  is 
an  experienced  man,  assume  the  risk  of  injury  caused 
by  a  reckless  method  of  doing  business  adopted  by  his 
employer.5 

§  184.    Same.     Work    outside   of  Ordinary  Duty. 
Finding  of  Due  Care  of  Plaintiff. 

Even  if  it  be  found  as  a  fact  by  the  jury  that  the 
plaintiff  was  in  the  exercise  of  due  care  and  diligence 
at  the  time  of  the  injury,  or  that  he  was  not  negligent, 
this  does  not  prevent  the  court  from  holding,  on  the 
facts,  that  the  danger  was  an  obvious  one  which  the 
plaintiff  voluntarily  assumed. 

1  Goldthwait  v.  Haverhill  &c.  Ry.,  160  Mass.  554. 

2  Snow  v.  Housatonic  Ry.,  8  Allen,  441  ;  Ferren  v.  Old  Colony  Ry.,  143 
Mass.  197  ;  Plauk  v.  New  York  Central  &c.  Ry.,  60  N.  Y.  607. 

8  Gustaf sen  v.  Washburn  &  Moen  Manuf .  Co.,  153  Mass.  468  ;  Hannah 
v.  Connecticut  River  Ry.,  154  Mass.  529. 

4  Bjbjian  v.  Woonsocket  Rubber  Co.,  164  Mass.  214. 

5  Caron  v.  Boston  &  Albany  Ry.,  164  Mass.  523. 


DIRECTING   VERDICT   FOR   DEFENDANT.       .    291 

In  Mellor  v.  Merchants'  Manuf.  Co.,  150  Mass.  362, 
a  loom-fixer  was  injured  by  a  belt  slipping  off  a  pul- 
ley while  he  was  attempting  to  repair  a  defect.  This 
work  was  outside  his  ordinary  duty,  and  was  under- 
taken at  the  suggestion  of  a  fellow-workman,  and  with 
the  mere  consent  of  his  immediate  superior.  The  jury 
found  a  general  verdict  for  the  plaintiff,  which  included 
a  finding  that  he  was  in  the  exercise  of  due  care  and 
diligence.  The  court  assumed  for  the  purposes  of  that 
case  that  this  finding  was  conclusive  upon  the  court, 
but  held,  nevertheless,  that  the  plaintiff  could  not 
recover,  for  the  reason  that  the  plaintiff  voluntarily 
took  the  risk  of  an  obvious  danger.  Mr.  Justice 
Holmes,  in  delivering  the  opinion,  says,  "  The  statute 
does  not  put  servants  in  a  better  position  than  that  of 
the  most  favored  persons  who  are  not  servants  "  (page 
364),  and  quotes  with  approval  an  illustration  put  by 
Bowen,  L.  J.,  in  Thomas  v.  Quartermaine,  18  Q.  B.  D. 
685,  695,  in  these  words  :  "  I  employ  a  builder  to  mend 
the  broken  slates  upon  my  roof  and  he  tumbles  off. 
Have  I  been  guilty  of  any  negligence  or  breach  of 
duty  towards  him  ?  Was  I  bound  to  erect  a  parapet 
round  my  roof  before  I  had  its  slates  mended?  " 

A  like  rule  prevails  at  common  law.1 

§  185.  Understanding  and  Appreciation  of  Danger. 
In  order  to  constitute  such  an  assumption  of  risk  as 
will  prevent  a  recovery  for  negligence,  it  must  appear 
that  the  employee  understood  and  appreciated  the 
danger  to  which  he  was  exposed.  If  this  does  not 
appear,  this  ground  is  no  defence  for  the  employer, 

1  Stuart  v.  West  End  Ry.,  163  Mass.  391. 


292  EMPLOYERS'  LIABILITY  ACTS. 

either  at  common  law1  or  under  the  Employers'  Lia- 
bility Acts.2 

In  Prendible  v.  Connecticut  River  Manuf.  Co.,  160 
Mass.  131,  the  plaintiff  was  injured  by  the  fall  of  a 
staging,  caused  either  by  its  defective  condition  or  its 
overloading  by  order  of  the  defendant's  superintendent. 
The  plaintiff  had  been  in  America  about  ten  years,  and 
had  worked  about  a  year  and  a  half  in  a  mill-yard  and 
seven  years  in  a  dye-house  before  he  was  employed  by 
the  defendant.  He  had  never  had  anything  to  do  with 
the  building  of  stagings.  At  the  time  of  his  injury  he 
was  ordered  to  get  upon  the  staging  to  pile  up  wood, 
and  as  soon  as  he  stepped  upon  it  it  fell.  In  an  action 
under  the  act,  it  was  held  that  "  it  did  riot  appear  that 
the  plaintiff  understood  and  appreciated  the  danger  of 
injury  from  working  on  the  staging  so  far  that  he  can 
be  said  to  have  assumed  the  risk."  Per  Knowlton,  J., 
page  139. 

In  Lynch  v.  Allyn,  160  Mass.  248,  an  inexperienced 
workman  was  injured  by  the  falling  of  a  bank  of  earth 
upon  him  while  he  was  engaged  in  undermining  it  by 
picking  at  the  bottom.  The  bank  was  composed  of 
hard-pan  and  clay  and  some  sand,  and  was  from  eight 
to  ten  feet  high  and  fifteen  or  twenty  feet  long.  The 
bank  was  not  expected  to  fall  by  the  force  of  gravi- 
tation, but  was  to  be  pried  over  from  the  top  by  bars 
after  a  proper  depth  had  been  picked  out  at  the  bot- 
tom. In  an  action  under  the  Employers'  Liability  Act 

1  Bjbjian  v,  Woonsocket  Rubber  Co.,  164  Mass.  214^  Fitzgerald  p. 
Connecticut  River   Paper  Co.,   155  Mass.   155  ;  Mahoney  u.  Dore,  155 
Mass.  513  ;  Patnode  v.  Warren  Cotton  Mills,  157  Mass.  283. 

2  Prendible  P.  Connecticut  River  Manuf.  Co.,  160  Mass.  131  ;  Coan  v. 
Maryborough,  164  Mass.  206. 


DIRECTING  VERDICT   FOR   DEFENDANT.  293 

the  defendant  claimed  that  the  danger  was  obvious, 
and  that  the  presiding  judge  should  have  so  ruled. 
The  full  court  held,  however,  that  the  question  was 
one  for  the  jury.  Mr.  Justice  Lathrop,  in  delivering 
the  opinion  of  the  court,  says  on  pages  253,  254  :  — 

"  While  we  have  no  doubt  of  the  power  and  of  the 
duty  of  the  court  in  a  case  either  at  common  law  or 
under  the  statute  of  1887,  ch.  270,  where  the  peril  is 
obvious,  so  to  rule,  as  matter  of  law,  yet  we  are  of 
opinion  in  this  case  that,  on  the  evidence,  the  question 
was  for  the  jury.  The  case  was  not  one  where  a 
man  was  set  to  work  to  undermine  a  bank  which  was 
expected  to  fall  by  the  law  of  gravitation,  and  where 
he  was  expected  to  look  out  for  himself.  In  such  a 
case  we  should  have  no  doubt  that  the  danger  would 
be  obvious.1  In  the  case  at  bar  it  appears  from  the 
testimony  of  the  defendant's  superintendent  that  the 
way  this  bank  was  to  be  taken  down  was  by  picking  at 
the  bottom  until  a  proper  depth  was  reached,  and  then 
to  pry  the  top  over  with  bars ;  that  he  knew  there  was 
sand  in  the  bank,  and  that  such  a  bank  is  more  liable 
to  fall  than  a  clay  bank ;  that  he  meant  to  guard 
against  it ;  and  that  when  he  left  he  intended  to  come 
back  very  soon.  .  .  .  On  the  evidence,  we  do  not  think 
that  the  danger  of  the  bank  falling  was  so  obvious  that 
the  judge  ought  to  have  given  the  ruling  requested." 

In  Coan  v.  Marlborough,  164  Mass.  206,  a  common 
laborer,  while  digging  a  trench,  was  injured  by  the 
sides  caving  in,  due  to  a  failure  to  brace  them  properly 
and  to  blasting  rock  in  the  bottom  of  the  trench.  The 

1  Citing  Griffin  v.  Ohio  &c.  Ry.,  124  Ind.  326,  and  Swanson  v.  Lafayette, 
134  Ind.  625. 


294  EMPLOYEES'  LIABILITY  ACTS. 

plaintiff  had  worked  much  in  such  trenches  and  knew 
that  the  trench  was  not  close-sheathed  ;  that  portions 
of  its  sides  were  not  covered ;  that  blasting  was  done 
to  remove  rock  at  the  bottom  ;  that  small  quantities 
of  earth  frequently  fell  from  the  sides,  and  the  nature 
of  the  soil  and  the  depth  of  the  trench.  In  an  action 
under  the  Employers'  Liability  Act  of  Massachusetts, 
Statute  1887,  ch.  270,  §  1,  cl:  1,  it  was  held  that  these 
facts  were  not  conclusive  that  plaintiff  appreciated  the 
risk,  and  that  a  verdict  in  his  favor  was  proper.  Mr. 
Justice  Barker  thus  states  the  reasons  on  page  207 : 
"  The  plaintiff  was  a  common  laborer,  working  where 
he  was  told  to  work,  and  having  no  discretion  as  to 
where  he  should  stand.  He  had  a  right  to  rely  upon 
the  inspection  of  the  shoring,  and  of  the  condition  of 
the  sides  of  the  trench,  made  by  his  superiors  after 
each  blast  before  allowing  the  workmen  again  to  enter 
the  trench,  and  he  was  not  charged  with  the  decision 
of  the  question  whether  there  was  danger.  Neither 
the  fact  that  inconsiderable  quantities  of  earth  were 
frequently  falling,  nor  his  experience  in  trenches,  can 
be  said  to  show,  as  matter  of  law,  that  he  appreciated 
the  danger." 1 

§  186.  Same.  Young  and  Inexperienced  Employees. 
The  rule  that  the  employee  must  understand  and 
appreciate  the  danger  in  order  to  prevent  a  recovery  is 
peculiarly  applicable  to  young  and  inexperienced  per- 
sons who  are  engaged  to  work  upon  or  near  dangerous 
machinery.  In  the  case  of  such  persons  the  employer 

1  See,  also,  Burgess  v.  Davis  Sulphur  Ore  Co.,  165  Mass.  71 ;  42  N.  E. 
Kep.  501. 


DIRECTING  VERDICT   FOR   DEFENDANT.  295 

is  held  to  a  more  strict  accountability  than  in  the  case 
of  persons  of  full  age  and  experience.  A  young  or 
inexperienced  person  will  not  be  held  to  have  assumed 
some  risks  which  a  person  of  experience  or  full  age 
would  be  held  to  have  assumed.  The  facts  of  these 
cases,  however,  are  generally  so  complex  that  it  seems 
inexpedient  to  do  much  more  than  cite  the  cases.1 

In  Mary  Lee  Coal  Co.  v.  Chambliss,  97  Ala.  171,  a 
locomotive  fireman,  aged  17  years,  with  no  experience 
in  throwing  switches,  was  injured  while  throwing  a 
switch  in  obedience  to  the  orders  of  his  engineer,  the 
regular  switchman  being  absent  from  duty.  In  an 
action  under  the  Alabama  act,  the  court,  by  Mr.  Jus- 
tice Coleman,  says,  on  page  178 :  "  An  employee  by  his 
agreement  assumes  the  ordinary  risks  incident  to  and 
within  the  scope  of  his  employment.  He  may  be  pre- 
sumed to  know  these  when  he  enters  into  his  contract. 
This  general  rule  will  not  apply  when  the  employee  is 
young  and  inexperienced,  and  these  facts  are  known  at 
the  time  to  the  employer."  2 

1  Coombs  v.  New  Bedford  Cordage  Co.,  102  Mass.  572  ;  O'Connor  v. 
Adams,  120  Mass.  427 ;  Sullivan  v.  India  Manuf.  Co.,  113  Mass.  396  ; 
Wilson  v.  Steel  Edge  Stamping  Co.,  163  Mass.  315  ;  Patnode  v.  Warren 
Cotton  Mills,   157  Mass.  283  ;  Ciriack  v.  Merchants'  Woollen  Co.,  146 
Mass.  182,  and  151  Mass.  152  ;  Coullard  v.  Tecumseh  Mills,  151  Mass. 
85  ;  Probert  v.  Phipps,  149  Mass.  258  ;  Crowley  ».  Pacific  Mills,  148 
Mass.  228 ;  Pratt  v.  Proutty,  153  Mass.  333  ;  Hanson  v.  Ludlow  Manuf. 
Co.,  162  Mass.  187  ;  Siddall  v.  Pacific  Mills,  162  Mass.  378  ;  Bjbjian  v. 
Woonsocket  Rubber  Co.,  164  Mass.  214  ;  41  N.  E.  Rep.  265  ;  Louisville 
&c.  Ry.  v.  Boland,  96  Ala.  626  ;  Hathaway  v.  Michigan  Central  Ry.,  51 
Mich.  253 ;  Railroad  Co.  v.  Fort,  17  Wall.  553. 

2  Citing  Williams  v.  South  &  North  Alabama  Ry.,  91  Ala.  635,  640. 


296  EMPLOYERS'  LIABILITY  ACTS. 

§  187.  Assumption  of  Risk  by  Minor  Employee. 

Beach  on  Contributory  Negligence  (2d  ed.  §  357) 
contains  a  vigorous  argument  in  favor  of  the  view 
that  a  minor  employee  should  not  be  deemed  to  have 
assumed  the  risks  of  the  employment,  because  the 
doctrine  is  founded  upon  an  implied  contract,  and  that 
minors  are  not  bound  even  by  express  contracts  with 
their  employers,  much  less  by  implied  contracts.  The 
adjudications,  however,  are  strongly  to  the  contrary, 
especially  in  Massachusetts  and  Alabama.1  The  Ala- 
bama court  places  its  decision  upon  the  ground  that 
such  a  contract  is  not  void  but  merely  voidable,  and 
that  the  bringing  of  an  action  for  an  injury,  caused  by 
some  specific  negligence  committed  in  the  course  of 
the  business,  amounts  to  an  adoption  or  ratification 
of  the  voidable  contract,  and  subjects  the  minor  to  the 
same  rules  which  govern  in  actions  by  adult  employees. 
The  same  case,  however,  contains  a  dictum  by  Mr. 
Justice  Head,  which  indicates  that  the  doctrine  has 
been  somewhat  modified  by  the  Employers'  Liability 
Act.  Thus  he  says :  "  In  cases  under  our  statute 
known  as  the  Employers'  Liability  Act,  which  renders 
actionable  against  the  employer  the  negligence  of  fellow- 
servants  in  certain  specified  cases,  the  age  of  the  injured 
party  might  be  material  in  evidence  to  give  character  to 
the  act  of  the  servant  charged  as  negligent,  or  exert 

1  King  v.  Boston  &c.  Ry.,  9  Cush.  112  ;  Curran  v.  Merchants'  Manuf. 
Co.,  130  Mass.  374  ;  Siddall  v.  Pacific  Mills,  162  Mass.  378  ;  Harris  v. 
McNamara,  97  Ala.  181,  182,  183  ;  Fisk  v.  Central  Pacific  Ry.,  72  Cal. 
38 ;  Brown  v.  Maxwell,  6  Hill,  592  ;  Gartland  v.  Toledo  &c.  Ry.,  67  111. 
498. 


DIRECTING   VERDICT   FOR   DEFENDANT.  297 

an  influence  upon  the  question  of  contributory  negli- 
gence when  that  defence  is  interposed."  l 

That  the  doctrine  that  an  employee  assumes  the  risks 
of  his  employment  is  based  upon  an  implied  contract 
between  employer  and  employee,  both  at  common  law2 
and  under  the  Employers'  Liability  Act,3  has  been  held 
in  some  jurisdictions;  but  the  better  view  seems  to  be 
that  the  doctrine  is  founded  upon  considerations  of 
public  policy  not  dependent  upon  contract,  and  that  a 
minor  employee,  if  of  sufficient  understanding  to  appre- 
ciate the  risk  incurred,  is  bound  by  the  rule.4  This 
view  is  also  supported  by  the  decisions  holding  that  a 
workman  may  assume  the  risks  of  his  employment,  so 
as  to  prevent  a  recovery  from  the  owner  or  lessee  of 
premises  for  injuries  caused  by  an  obvious  danger 
therein,  when  there  is  no  contractual  relation  between 
the  two  persons.5  It  likewise  receives  some  support 
from  the  cases  which  decide  that  an  employee  who  is 
injured  while  engaged  upon  work  outside  of  his  regular 
duties  may  be  deemed  to  have  assumed  the  risk  of 
injury,  irrespective  of  any  implied  term  in  his  contract 
of  service,  and  cannot  recover  of  his  employer  either 
under  the  Employers'  Liability  Act,  or  at  common  law.6 

1  Harris  v.  McNamara,  97  Ala.  181,  183. 

2  Priestley  v.  Fowler,  3  M.  &  W.  1  ;  Wilson  v.  Merry,  L.  R.  1  H.  L. 
Sc.  326  ;  Griffin  v.  Ohio  &c.  Ry.,  124  Ind.  326,  327,  and  cases  cited  ; 
Siddall  ».  Pacific  Mills,  162  Mass.  378,  382. 

3  Griffiths  v.  Dudley,  9  Q.  B.  D.  357. 

*  De  Graff  v.  New  York  Central  &c.  Ry.,  76  N.  Y.  125  ;  Railroad  Co. 
v.  Fort,  17  Wall.  553,  557. 

5  Wood  v.  Locke,  147  Mass.  604  ;  Goddard  v.  Mclntosh,  161  Mass.  253. 

6  Mellor  ».  Merchants'  Manuf.  Co.  150  Mass.  362  ;  Stuart  v.  West  End 
Ry.,  163  Mass.  391. 


298  EMPLOYERS'  LIABILITY  ACTS. 

B.  NEGLIGENCE  OF  A  SUPERINTENDENT. 

§  188.  No  Assumption  of  Risk  from  Superintend- 
ent's Negligence  under  the  Statute. 

An  employee  does  not  assume  the  risk  arising  from 
the  negligence  of  a  person  entrusted  by  the  employer 
with  and  exercising  superintendence.  To  apply  the 
doctrine  of  assumption  of  risk  to  such  a  case  would 
defeat  the  purpose  of  the  statute.  If  the  injury  be 
caused  by  the  negligence  of  a  superintendent,  the 
employer  is  liable  under  the  act. 

Thus,  in  Davis  v.  New  York  &c.  Ry.,  159  Mass.  532, 
the  plaintiff  was  run  down  by  a  train  while  he  was 
repairing  a  track  for  the  defendant.  The  work  required 
him  to  bend  over,  facing  the  north,  so  that  he  had  to 
rely  upon  the  warning  of  the  section  boss  of  the 
approach  of  trains  from  the  south.  At  the  trial  the 
evidence  was  conflicting  as  to  whether  the  section  boss 
gave  the  usual  warning,  but  the  jury  found  a  verdict 
for  the  plaintiff.  At  the  argument  before  the  full 
court  the  defendant  contended  that  the  plaintiff  must 
be  considered  to  have  assumed  the  risk  of  the  section 
boss's  failure  to  warn  him  of  approaching  trains.  But 
the  court  held  otherwise,  and  in  the  course  of  an 
opinion  by  Holmes,  J.,  said :  "  A  workman  does  not 
take  the  risk  that  a  person  entrusted  by  his  employer 
with  and  exercising  superintendence  will  be  negligent 
in  the  exercise  of  that  duty.  If  he  were  held  to 
do  so,  the  statute  would  be  made  of  no  avail."  *  Page 
536. 

1  See,  also,  Smith  v.  Baker,  [1891]  A.  C.  325 ;  Lynch  v.  Allyn,  160 
Mass.  248  ;  Hennessy  v.  Boston,  161  Mass.  502. 


DIRECTING  VERDICT   FOR   DEFENDANT.  299 

In  Malcolm  v.  Fuller,  152  Mass.  161,  a  workman 
was  injured  by  an  explosion  while  in  the  act  of  drilling 
out  a  blast  in  a  stone  quarry  under  the  direction  of  the 
defendant's  superintendent.  The  injury  was  caused 
by  reason  of  the  superintendent's  negligence,  and  the 
defendant  contended  that  such  negligence  was  one  of 
the  risks  which  the  plaintiff,  assumed  when  he  entered 
upon  the  service,  and  that  therefore  he  could  not 
recover.  This  was  true  at  common  law  in  Massachu- 
setts.1 But  the  court  held  that  the  Employers'  Liability 
Act  changed  the  common-law  rule  upon  this  point,  and 
made  the  defendant  responsible  for  such  negligence. 
If  the  negligence  of  the  defendant's  superintendent 
can  fairly  be  found  to  be  the  cause  of  the  plaintiff's 
injury,  a  verdict  for  the  plaintiff  is  proper,  notwith- 
standing the  fact  that  the  injury  was  attended  by 
certain  obvious  risks  which  he  must  be  deemed  to  have 
assumed.  Thus,  in  McPhee  v.  Scully,  163  Mass.  216, 
the  plaintiff,  while  in  the  defendant's  employ,  had  his 
hand  crushed  in  a  pile-driver.  When  the  accident 
happened  the  plaintiff  was  standing  aloft  on  a  joist, 
swinging  and  steadying  a  pile  to  put  it  in  position. 
The  driving-hammer  was  five  feet  above  him,  held  in 
place  by  a  chocking-block.  In  the  course  of  his  work 
he  put  his  left  hand  on  top  of  the  pile,  directly  in  the 
line  of  descent  of  the  hammer,  and  at  this  instant  the 
hammer  fell  and  caused  the  injury.  There  was  no 
defect  in  the  pile-driver,  and  the  cause  of  the  hammer's 
fall  was  the  accidental  pulling  away  of  the  chocking- 
block  by  the  strain  of  the  gypsy-fall,  which  a  drunken 
fellow-workman  who  held  the  fall  negligently  allowed 

1  Kenney  v.  Shaw,  133  Mass.  501. 


300  EMPLOYEES'  LIABILITY  ACTS. 

to  get  over  the  block  in  such  a  way  that  when  made 
taut  it  pulled  the  block  out  from  under  the  hammer. 
The  block  projected  about  three  inches  beyond  the 
outer  face  of  the  upright  beam,  and  it  was  obvious  that 
the  gypsy-fall  might  get  over  the  projecting  end  of  the 
block  and  cause  the  hammer  to  fall.  The  defendant's 
foreman  or  superintendent  in  charge  of  the  work  gave 
the  order  to  "  hoist  again  "  after  the  fall  had  become 
foul  of  the  block  and  immediately  before  the  accident, 
and  the  intoxication  of  the  workman  who  held  the  fall 
was  evident.  In  this  action  under  the  Employers' 
Liability  Act  it  was  held  that  the  plaintiff  hacj.  not 
assumed  the  risk  of  injury  from  the  superintendent's 
negligence  in  giving  the  order  to  "  hoist  again  "  at  that 
time,  and  in  allowing  the  fall  to  be  handled  by  a 
drunken  workman,  and  that  a  verdict  for  the  plain- 
tiff was  justified  by  the  evidence. 

Under  the  Massachusetts  Employers'  Liability  Act 
it  cannot  be  ruled  as  matter  of  law  that  an  inexperi- 
enced workman  who  is  engaged  in  undermining  a  bank 
of  earth  assumes  the  risk  attendant  upon  the  temporary 
absence  of  the  superintendent,  whose  duty  it  is  to  warn 
him  of  danger.  If  he  is  injured  by  the  falling  of  the 
bank  during  such  absence,  the  fact  that  he  knew  of  the 
superintendent's  absence  and  continued  to  work  with- 
out objection  will  not  prevent  his  recovery.  The  ques- 
tion is  at  least  one  for  the  jury  to  determine.1 

§  189.  Common-Law  Rule. 

At  common  law  the  employee  was  held  to  assume 
the  risk  of  injury  from  the  negligence  of  a  superintend- 

1  Lynch  v.  Allyn,  160  Mass.  248. 


DIRECTING   VERDICT   FOR   DEFENDANT.  301 

ent,1  as  well  as  from  an  obvious  defect  in  the  condition 
of  the  ways,  works,  or  machinery,2  and  could  not  re- 
cover of  his  employer  in  either  case.  Thus,  in  Albro 
v.  Agawam  Co.,  6  Gush.  75,  a  spinner  was  injured 
through  the  negligence  of  a  superintendent.  In  an 
action  at  common  law  it  was  held  that  the  common 
employer  was  not  liable  in  damages  to  the  spinner,  for 
the  following  reasons,  as  stated  by  Mr.  Justice  Fletcher 
for  the  court  on  pages  76,  77 :  "  This  case  cannot  be 
distinguished  in  principle  from  the  case  of  Farwell  v. 
Boston  &  Worcester  Railroad,  4  Met.  49  ;  and  the  same 
point  has  been  since  adjudged  in  the  case  of  Hayes 
v.  Western  Railroad,  3  Cush.  270.  The  principle  of 
these  decisions  is,  that  when  one  person  engages  in  the 
service  of  another  he  undertakes,  as  between  him  and 
his  employer,  to  run  all  the  ordinary  risks  of  the  service, 
and  this  includes  the  risk  of  negligence  on  the  part  of 
others  in  the  service  of  the  same  employer,  whenever 
he,  such  servant,  is  acting  in  the  discharge  of  his  duty 
to  his  employer,  who  is  the  common  employer  of  both. 
...  It  cannot  affect  the  principle  that  the  duties  of 
the  superintendent  may  be  different,  and  perhaps  may 
be  considered  as  of  a  somewhat  hio-her  character  than 

o 

those  of  the  plaintiff.  .  .  .  The  plaintiff  and  the  super- 
intendent must  be  considered  as  fellow-servants  within 
the  principle  and  meaning  of  the  cases  above  referred 
to,  and  the  other  adjudged  cases  on  this  subject." 
So,  in  Zeigler  v.  Day,  123  Mass.  152,  where  a  laborer, 

1  Moody  v.  Hamilton  Manuf.  Co.,  159  Mass.  70  ;  Kalleck  v.  Deering, 
161  Mass.  469  ;  Zeigler  v.  Day,  123  Mass.  152  ;  Albro  v.  Agawam  Co.,  6 
Cush.  75  ;  Floyd  v.  Sugden,  134  Mass.  563. 

2  Rooney  v.  Sewall  Cordage  Co.,  161  Mass.  153 ;  Goldthwait  v.  Haver- 
hill  &c.  By.,  160  Mass.  554. 


302  EMPLOYERS'  LIABILITY  ACTS. 

while  digging  a  sewer  trench,  was  injured  through  the 
negligence  of  a  superintendent,  it  was  held  that  he 
could  not  recover  of  the  common  employer,  because 
"  such  negligence  is  regarded  as  among  the  ordinary 
risks  of  the  employment  in  which  he  was  engaged." 

A  like  rule  has  been  applied  to  the  negligence  of  a 
mate  or  captain  of  a  vessel  in  harbor ;  and  in  actions  at 
common  law  against  the  owner  of  the  vessel  for  per- 
sonal injuries  to  a  common  sailor,  it  has  been  decided 
that  the  mate  and  captain  were  no  more  than  fellow- 
servants  with  the  sailor,  and  that  the  latter  assumed 
the  risk  of  injury  from  their  negligence,  and  could  not 
recover  of  the  common  employer.2 

At  common  law,  in  Massachusetts  and  elsewhere,  an 
employee  who,  knowing  that  his  foreman  was  incom- 
petent, continued  to  work  under  him  and  made  no  com- 
plaint to  the  employer,  was  deemed  to  have  assumed 
the  risk,  and  could  not  maintain  an  action  against  the 
employer  for  an  injury  caused  by  the  negligence  of  the 
foreman.3 

C.    NEGLIGENCE   OF   ONE    HAVING   CHARGE    OB   CONTROL   OF   SIGNAL, 
SWITCH,    LOCOMOTIVE   ENGINE,    OR   TRAIN   UPON   A    RAILROAD. 

§  190.  An  employee  of  a  railroad  company  does  not 
assume  the  risk  of  the  negligence  of  "  any  person  in 
the  service  of  the  employer  who  has  the  charge  or  con- 
trol of  any  signal,  switch,  locomotive  engine,  or  train 

1  Per  Colt  J.,  for  the  court,  page  153. 

2  Kalleck  v.  Deering,  161  Mass.  469  ;  Benson  v.  Goodwin,  147  Mass. 
237  ;  Loughlin  v.  State,  105  N.  Y.  159  ;  Hedley  v.  Pinkney  Steamship 
Co.,  [1892]  1  Q.  B.  58. 

8  Hatt  v.  Nay,  144  Mass.  186  ;  Davis  v.  Detroit  &c.  Ry.,  20  Mich.  105  ; 
Frazier  v.  Pennsylvania  Ry.,  38  Pa.  St.  104. 


DIRECTING   VERDICT   FOR  DEFENDANT.  303 

upon  a  railroad."  The  Massachusetts  statute  makes 
the  railroad  company  liable  to  its  employees  for  the 
negligence  of  such  persons,  and  if  the  common-law  doc- 
trine of  assumption  of  risk  were  applied  to  such  cases 
the  statute  would  be  nullified.  An  employee  may  there- 
fore recover  of  the  railroad  company  for  an  injury 
caused  by  such  negligence.1 

1  Steffe  v.  Old  Colony  Ry.,  156  Mass.  262. 


CHAPTER  XV. 


CONFLICT    OF    LAWS. 


Section 

191.  Action  outside  the  State  of  in- 

jury upon  statute  of  the  State 
of  injury. 

192.  Same.    Not  necessary  that  the 

State  of  process  should  give 
a  remedy  for  such  injury. 

193.  Public  policy. 

194.  Such  statutes  are  not  "  penal  " 

laws. 

195.  Statute  of  State  of  process  does 

not  apply  to  injuries  caused 


Section 

and  received  outside  of  that 
State. 

196.  Negligence  in  one  State  caus- 

ing injury  in  another  State. 

197.  Injuries  received  on  navigable 

waters. 

198.  Limit  of  damages  recoverable 

and  distribution  thereof. 

199.  Procedure     governed    by    lex 

fori. 


§  191.  Action  outside  the  State  of  Injury  upon  Statute 
of  the  State  of  Injury. 

IN  most  jurisdictions  the  rule  is  now  firmly  estab- 
lished that  an  action  for  personal  injuries  received  in 
one  State  may  be  maintained  in  another  State,  or  in 
the  federal  courts  sitting  in  another  State,  founded 
upon  a  statute  of  the  former  State,  unless  such  statute 
is  contrary  to  the  public  policy  of  the  latter  State.1 

In  the  leading  case  of  Dennick  v.  Railroad  Co.,  103 
U.  S.  11,  the  plaintiff's  intestate  was  instantly  killed  in 

1  Hilton  v.  Alabama  &c.  Ry.,  97  Ala.  275  ;  Knight  v.  West  Jersey  Ry., 
108  Pa.  St.  250  ;  Higgins  v.  Central  New  England  Ry.,  155  Mass.  176  ; 
Herrick  v.  Minneapolis  &c.  Ry.,  31  Minn.  11  ;  Chicago  &c.  Ry.  v.  Doyle, 
60  Miss.  977  ;  Morris  v.  Chicago  &c.  Ry.,  65  Iowa,  727  ;  McLeod  v. 
Connecticut  &c.  Ry.,  58  Vt.  727  ;  South  Carolina  Ry.  ».  Nix,  68  Ga.  572  ; 
Missouri  Pacific  Ry.  v.  Lewis,  24  Neb.  848  ;  McDonald  v.  McDonald,  28 
S.  W.  Rep.  (Ky.)  482. 


CONFLICT   OF   LAWS.  305 

New  Jersey  through  the  negligence  of  the  defendant 
railroad  company.  A  statute  of  New  Jersey  gave  an 
administrator  a  right  of  action  in  such  case  against  the 
railroad  company,  for  the  benefit  of  the  widow  and 
next  of  kin.  The  plaintiff,  the  widow  of  the  deceased, 
was  appointed  administratrix  in  New  York,  and  the 
action  was  brought  in  a  court  of  that  State,  and  after- 
wards removed  by  the  defendant,  on  the  ground  of 
diverse  citizenship,  to  the  Circuit  Court  of  the  United 
States  for  the  District  of  New  York.  The  trial  court 
ruled  that  the  plaintiff  could  not  recover  in  New  York 
under  the  New  Jersey  statute.  In  reversing  this  judg- 
ment, the  Supreme  Court,  speaking  through  Mr.  Jus- 
tice Miller,  says  on  pages  17  and  18 :  — 

"It  can  scarcely  be  contended  that  the  act  belongs 
to  the  class  of  criminal  laws  which  can  only  be  enforced 
by  the  courts  of  the  State  where  the  offence  was  com- 
mitted, for  it  is,  though  a  statutory  remedy,  a  civil 
action  to  recover  damages  for  a  civil  injury.  It  is, 
indeed,  a  right  dependent  solely  on  the  statute  of  the 
State ;  but  when  the  act  is  done  for  which  the  law  says 
the  person  shall  be  liable,  and  the  action  by  which  the 
remedy  is  to  be  enforced  is  a  personal  and  not  a  real 
action,  and  is  of  that  character  which  the  law  recog- 
nizes as  transitory  and  not  local,  we  cannot  see  why 
the  defendant  may  not  be  held  liable  in  any  court  to 
whose  jurisdiction  he  can  be  subjected  by  personal  pro- 
cess, or  by  voluntary  appearance,  as  was  the  case  here. 
It  is  difficult  to  understand  how  the  nature  of  the  rem- 
edy, or  the  jurisdiction  of  the  courts  to  enforce  it,  is  in 
any  manner  dependent  on  the  question  whether  it  is  a 
statutory  right  or  a  common-law  right.  Whenever,  by 


306  EMPLOYERS'  LIABILITY  ACTS. 

either  the  common  law  or  the  statute  law  of  a  State,  a 
right  of  action  has  become  fixed  and  a  legal  liability 
incurred,  that  liability  may  be  enforced  and  the  right 
of  action  pursued  in  any  court  which  has  jurisdiction  of 
such  matters  and  can  obtain  jurisdiction  of  the  parties." 
This  rule  has  been  reaffirmed  several  times  by  the 
Supreme  Court  of  the  United  States.1  Some  of  the 
state  courts  whose  earlier  decisions  were  of  a  contrary 
tendency  have  since  this  decision  either  overruled  or 
modified  them  so  as  to  conform  to  this  rule.2 

§  192.  Same.  Not  Necessary  that  the  State  of  Pro- 
cess should  give  a  Remedy  for  such  Injury. 

Where  the  State  of  injury  gives  a  right  of  action  for 
the  personal  injury  received,  it  is  not  necessary  to  a 
recovery  that  the  State  of  process  should  concur  in  giv- 
ing a  remedy  for  a  like  injury  within  its  limits.  The 
authorities,  however,  are  not  uniform  upon  this  subject. 

In  the  recent  case  of  Walsh  v.  New  York  &c.  Ry., 
160  Mass.  571,  a  railroad  employee  was  injured  in  Con- 
necticut by  the  negligence  of  a  car-inspector  in  failing 
to  discover  a  broken  draw-bar  on  a  foreign  car  which 
the  defendant  was  forwarding.  At  the  time  when  the 
injury  was  received,  before  the  passage  of  the  Massa- 
chusetts statute  1893,  ch.  359,  the  plaintiff  could  not 
have  recovered  in  Massachusetts  if  the  injury  had  been 
received  in  that  State.3  But  by  the  law  of  Connecticut, 

1  Texas  &c.  Ry.  v.  Cox,  145  U.  S.  593  ;  Huntington  v.  Attrill,  146 
U.  S.  657,  674  ;  Northern  Pacific  Ry.  v.  Babcock,  154  U.  S.  190. 

2  Higgins  v.  Central  New  England  Ry.,  155  Mass.  176,  178,  modifying 
Richardson  v.  New  York  Central  Ry.,  98  Mass.  85. 

8  Mackin  v.  Boston  &  Albany  Ry.,  135  Mass.  201 ;   Coffee  v.  New 
York  &c.  Ry.,  155  Mass.  21. 


CONFLICT   OF   LAWS.  307 

as  proved  at  the  trial  and  found  by  the  jury,  the  plain- 
tiff could  recover  in  that  State.  The  Massachusetts 
court  held  that  he  could  recover  in  Massachusetts,  upon 
the  principles  of  interstate  comity.  Mr.  Justice  Holmes, 
in  delivering  the  opinion  of  the  court,  says :  — 

"  We  are  of  opinion  that,  as  between  the  States  of 
this  Union,  when  a  transitory  cause  of  action  has  vested 
in  one  of  them  under  the  common  law  as  there  under- 
stood and  administered,  the  mere  existence  of  a  slight 
variance  of  view  in  the  forum  resorted  to,  not  amount- 
ing to  a  fundamental  difference  of  policy,  should  not 
prevent  the  enforcement  of  the  obligation  admitted  to 
have  arisen  by  the  law  which  governed  the  conduct  of 
the  parties."  Pages  572,  573. 

As  stated  by  the  Supreme  Court  of  the  United  States, 
it  was  decided  in  Dennick  v.  Railroad  Co.,  103  U.  S. 
11,  that  "  a  statute  of  a  State  .  .  .  might  be  enforced 
in  a  Circuit  Court  of  the  United  States  held  in  another 
State,  without  regard  to  the  question  whether  a  simi- 
lar liability  would  have  attached  for  a  similar  cause 
in  that  State." l 

In  England,  however,  and  in  a  few  of  the  state 
courts,  the  rule  appears  to  be  that  no  action  can  be 
maintained  outside  of  the  State  of  injury  unless  the 
law  of  the  State  of  process  concurs  with  the  law  of  the 
place  of  injury  in  giving  a  right  of  action.2  With 
respect  to  the  English  cases  just  cited,  see  the  opinion 

1  Huntington  v.  Attrill,  146  U.  S.  657,  675. 

2  The  Halley,  L.  R.  2  P.  C.  193,  204 ;  The  M.  Moxham,  1  P.  D.  107, 
111  ;  Phillips  v.  Eyre,  L.  R.  6  Q.  B.  1,  28,  29  ;  Ash  v.  Baltimore  &c.  Ry., 
72  Md.  144  ;  Vawter  v.  Missouri  Pacific  Ry.,  84  Mo.  679  (but  see  Stock- 
man v.  Terre  Haute  &c.  Ry.,  15  Mo.  App.  503)  ;  Anderson  v.  Milwaukee 
&c.  Ry.,  37  Wis.  321. 


308  EMPLOYERS'  LIABILITY  ACTS. 

of  Mr.  Justice  Holmes  in  Walsh  v.  New  York  &c.  Ry., 
160  Mass.  571,  572,  where  he  says  :  "  Possibly,  when  it 
becomes  material  to  scrutinize  the  question  more  closely, 
the  English  law  will  be  found  to  be  consistent  with  our 

o 

views." 

§  193.  Public  Policy. 

Although  it  is  true  in  general,  as  shown  in  §  192, 
that  it  is  not  necessary  to  a  recovery  that  the  laws  of 
the  State  of  injury  and  of  the  State  of  process  should 
concur  in  giving  a  remedy  for  the  negligent  act,  yet 
it  is  also  well  settled  that  no  recovery  can  be  had  if 
the  right  given  by  the  State  of  injury  is  contrary  to  the 
public  policy  of  the  State  of  process.  The  only  doubt- 
ful question  is,  what  is  or  is  not  contrary  to  the  public 
policy  of  the  State  of  process  ? 

In  the  first  place,  it  is  very  clear  that  the  mere  fact 
that  no  statute  exists  in  the  State  of  process,  conferring 
a  right  of  action  for  the  injury  received  in  another 
State,  does  not  render  the  statute  of  such  other  State 
contrary  to  the  public  policy  of  the  former  State,  nor 
prevent  its  enforcement  therein.1  ' 

In  Herrick  v.  Minneapolis  &c.  Ry.,  31  Minn.  11,  it 
was  held  that  a  railroad  employee  who  had  received  an 
injury  in  Iowa,  in  consequence  of  the  negligence  of  a 
fellow-servant,  could  recover  in  Minnesota  under  the 
Iowa  statute,  although  he  could  not  have  recovered 
there  if  the  injury  had  been  received  in  that  State.  In 
delivering  the  opinion  of  the  court,  Mr.  Justice  Mitchell 
says,  on  pages  14,  15  :  — 

1  Herrick  v.  Minneapolis  &c.  Ry.,  31  Minn.  11  ;  Walsh  v.  New  York 
&c.  Ry.,  160  Mass.  571  ;  Texas  &c.  Ry.  v.  Cox,  145  U.  S.  593  ;  Northern 
Pacific  Ry.  v.  Babcock,  154  U.  S.  190,  198. 


CONFLICT   OF   LAWS.  309 

"  But  it  by  no  means  follows  that,  because  the  stat- 
ute of  one  State  differs  from  the  law  of  another  State, 
therefore  it  would  be  held  contrary  to  the  policy  of  the 
laws  of  the  latter  State.  ...  To  justify  a  court  in 
refusing  to  enforce  a  right  of  action  which  accrued 
under  the  laws  of  another  State,  because  against  the 
policy  of  our  laws,  it  must  appear  that  it  is  against 
good  morals  or  natural  justice,  or  that,  for  some  other 
such  reason,  the  enforcement  of  it  would  be  prejudicial 
to  the  general  interests  of  our  own  citizens.  If  the 
State  of  Iowa  sees  fit  to  impose  this  obligation  upon 
those  operating  railroads  within  her  bounds,  and  to 
make  it  a  condition  of  the  employment  of  those  who 
enter  their  service,  we  see  nothing  in  such  a  law  repug- 
nant either  to  good  morals  or  natural  justice,  or  preju- 
dicial to  the  interests  of  our  own  citizens." 

An  action  may  be  brought  in  one  State  for  a  per- 
sonal injury  received  in  another  State  whose  statute 
gives  a  right  of  action  therefor,  if  the  laws  of  the  two 
States  are  substantially  alike  ;  it  is  not  essential  that  the 
statutes  should  be  precisely  the  same.1 

Where,  however,  the  action  is  brought  by  a  domestic 
executor  or  administrator  for  an  injury  received  in 
another  State  resulting:  in  the  death  of  his  testator  or 

O 

intestate,  and  a  statute  of  the  State  of  process  prohibits 
an  executor  or  administrator  from  bringing  an  action 
for  injuries  to  the  person  of  the  deceased,  it  has  been 
held  that  he  cannot  maintain  an  action  under  the  for- 
eign statute,  because  he  is  bound  by  the  laws  of  the 
State  of  his  appointment,  and  cannot  exercise  any  rights 
contrary  to  those  conferred  by  that  State.2  Nor  can  an 

1  Leonard  v.  Columbia  Steam  Nav.  Co.,  84  N.  Y.  48. 
a  Vawter  v.  Missouri  Pacific  %.,  84  Mo.  679. 


310  EMPLOYERS'  LIABILITY  ACTS. 

executor  or  administrator  appointed  in  a  State  having 
such  a  law  maintain  an  action  in  another  State,  although 
the  killing  occurred  in  the  latter  State  and  its  statutes 
give  a  remedy  therefor,  and  a  foreign  executor  or 
administrator  is  allowed  to  sue  in  its  courts.  The  rea- 
son assigned  is  that  an  administrator  takes  such  powers 
only  as  are  conferred  by  the  laws  of  the  appointing 
State,  and  cannot  exercise  any  greater  powers  in  another 
State.1  Upon  analogous  grounds  it  has  also  been 
decided  that  a  domestic  administrator  or  executor  could 
not  maintain  an  action  for  an  injury  to  the  person  of 
his  deceased,  under  a  foreign  statute,  which  was  not 
permitted  by  the  statutes  of  his  own  appointing  State, 
although  they  did  not  expressly  prohibit  him  from  so 
doing ;  he  must  be  able  to  show  that  the  laws  of  his 
State  entitle  him  to  recover,  and  it  is  not  sufficient  for 
him  to  show  that  they  do  not  prohibit  his  recovery.2 

§  194.  Such  Statutes  are  not  "Penal "  Laws. 
"  The  courts  of  no  country  execute  the  penal  laws  of 
another."  3  Hence  the  federal  courts  have  no  power 
to  execute  the  penal  laws  of  the  individual  States,4  even 
if  the  liability  has  been  reduced  to  judgment ;  for  "  the 
essential  nature  and  real  foundation  of  a  cause  of  action 
are  not  changed  by  recovering  judgment  upon  it."5 

1  Limekiller  v.  Hannibal  &c.  Ry.,  33  Kans.  83. 

8  Taylor  v.  Pennsylvania  Ry.,  78  Ky.  348  ;  Ash  v.  Baltimore  &c.  Ry., 
72  Md.  144. 

8  The  Antelope,  10  Wheat.  66,  123,  per  Marshall,  C.  J. 

4  Huntington  v.  Attrill,  146  U.  S.  657,  673 ;  Gwin  v.  Breedlove,  2 
How.  29,  36,  37  ;  Gwin  v.  Barton,  6  How.  7. 

5  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265,  292,  293,  disapproving 
Spencer  v.  Brockway,  1  Ohio,  259  ;  Healy  v.  Root,  11  Pick.  389,  and  Indi- 
ana v.  Helmer,  21  Iowa,  370. 


CONFLICT   OF   LAWS.  311 

Nor  can  the  state  courts  enforce  the  penal  laws  of  the 
United  States,1  nor  of  sister  States.2 

A  penal  law  in  this  sense  has  been  thus  defined  by 
Mr.  Justice  Gray,  speaking  for  the  court  in  Huntington 
v.  Attrill,  146  U.  S.  657,  673,  674:- 

"The  question  whether  a  statute  of  one  State,  which 
in  some  aspects  may  be  called  penal,  is  a  penal  law  in 
the  international  sense,  so  that  it  cannot  be  enforced  in 
the  courts  of  another  State,  depends  upon  the  question 
whether  its  purpose  is  to  punish  an  offence  against  the 
public  justice  of  the  State,  or  to  afford  a  private  remedy 
to  a  person  injured  by  the  wrongful  act.  There  could 
be  no  better  illustration  of  this  than  the  decision  of  this 
court  in  Dennick  v.  Railroad  Co.,  103  U.  S.  11." 

It  follows  from  the  distinction  pointed  out  in  the  pre- 
ceding quotation  that  a  state  Employers'  Liability  Act 
which  enlarges  the  common-law  liability  of  employers 
for  personal  injury,  and  gives  an  employee  a  right  of 
action  for  negligence  which  he  did  not  possess  before 
the  passage  of  the  statute,  is  not  a  penal  law  in  the 
international  sense,  so  as  to  prevent  its  enforcement  in 
the  courts  of  other  States  or  in  the  federal  courts.  To 
give  effect  to  such  a  statute  of  another  State  is  not 
to  administer  a  punishment  imposed  upon  an  offender 
against  the  State,  but  merely  to  afford  a  private  remedy 
to  an  employee  who  has  been  injured  by  the  negligent 

1  State  v.  Pike,  15  N.  H.  83  ;  Ely  v.  Peck,  7  Conn.  239  ;  Ward  v.  Jen- 
kins, 10  Met.  (Mass.)  583,  587  ;  Delafield  v.  Illinois,  2  Hill  (N.  Y.),  159, 
169  ;  Scoville  v.  Canfield,  14  Johns.  (N.  Y.)  338  ;  United  States  v.  Latrop, 
17  Johns.  (N.  Y.)  4. 

2  Davis  v.  New  York  &c.  Ry.,  143  Mass.  301  ;  Commonwealth  v.  Green, 
17  Mass.  515,  540,  541 ;  Scoville  v.  Canfield,  14  Johns.  (N.  Y.)  338  ; 
State  v.  Knight,  Taylor  (N.  C.),  65. 


312  EMPLOYEES'  LIABILITY  ACTS. 

act.  Such  a  statutory  right  will  therefore  be  enforced 
in  other  States  upon  the  principles  of  interstate  comity, 
unless  it  is  repugnant  to  their  public  policy. 

The  facts  that  the  statute  limits  the  amount  recover- 
able to  a  certain  sum,  and,  in  case  the  injury  results  in 
death,  provides  for  its  payment  to  the  widow,  or  next 
of  kin,  or  other  person,  thereby  withdrawing  the  fund 
from  the  assets  for  the  payment  of  debts,  and  from 
the  operation  of  the  will  of  the  injured  person,  do  not 
render  the  action  one  for  the  recovery  of  a  penalty,  so 
as  to  prevent  its  enforcement  in  another  State.1 

In  Adams  v.  Fitchburg  Ry.,  67  Vt.  76,  it  was  held, 
however,  that  §  212  of  Mass.  Pub.  Stats,  ch.  112,  was 
penal  and  not  enforcible  in  Vermont,  chiefly  because 
it  declares  that  the  amount  recoverable  in  case  of  death 
shah1  be  not  less  than 


§  195.  Statute  of  State  of  Process  does  not  apply  to 
Injuries  caused  and  received  outside  of  That  State. 

An  Employers'  Liability  Act,  or  other  similar  statute 
of  one  State,  does  not  give  a  right  of  action  for  a 
personal  injury  caused  and  received  in  another  State, 
unless  such  intention  is  clearly  expressed  in  the  statute. 
Its  operation  is  confined  to  the  enacting  State.  An 
employee  who  is  injured  in  another  State  cannot  re- 
cover under  the  Employers'  Liability  Act  of  his  own 
State.2 

1  Higgins  v.  Central  New  England  &c.  Ry.,  155  Mass.  176,  181. 

2  Alabama  Great  Southern  Ry.  v.  Carroll,  97  Ala.  126. 

To  the  same  effect,  under  similar  statutes,  are  the  cases  of  McCarthy 
0.  Chicago  &c.  Ry.,  18  Kans.  46  ;  Nashville  &c.  Ry.  v.  Foster,  10  Lea 
(Tenn.),  351  ;  Chicago  &c.  Ry.  v.  Doyle,  60  Miss.  977  ;  Kahl  v.  Memphis 
&c.  Ry.,  95  Ala.  337  ;  Le  Forest  v.  Tolman,  117  Mass.  109  ;  WilKs  v. 


CONFLICT   OF   LAWS.  313 

In  the  Alabama  case  above  cited1  a  freight  brake- 
man  received  an  injury  in  Mississippi  by  reason  of  the 
negligence  of  an  inspector  in  Alabama  in  failing  to 
discover  a  defective  link  in  a  foreign  car.  Under  the 
Alabama  Employers'  Liability  Act  the  employee  could 
have  recovered  if  the  injury  had  occurred  in  that  State. 
In  Mississippi  there  was  no  such  statute,  and  by  its 
common  law  the  inspector  and  brakeman  were  consid- 
ered fellow-servants,  for  whose  negligence  the  common 
employer  was  not  liable  to  either  for  the  other's  act. 
The  Alabama  court  held  that  the  plaintiff  could  not 
recover  under  the  statute. 

In  delivering  the  opinion  of  the  court  in  Alabama 
&c.  Ry.  v.  Carroll,  97  Ala.  126,  134,  Mr.  Justice 
McClellan  says :  — 

"  Section  2590  of  the  Code,  in  other  words,  is  to  be 
interpreted,  in  the  light  of  universally  recognized  prin- 
ciples of  private  international  or  interstate  law,  as  if 
its  operation  had  been  expressly  limited  to  this  State, 
and  as  if  its  first  line  read  as  follows :  '  When  a  per- 
sonal injury  is  received  in  Alabama  by  a  servant  or 
employee,'  etc.,  etc.  The  negligent  infliction  of  an 
injury  here  under  statutory  circumstances  creates  a 
right  of  action  here,  which,  being  transitory,  may  be 
enforced  in  any  other  State  or  country  the  comity  of 
which  admits  it ;  but  for  an  injury  inflicted  elsewhere 
than  in  Alabama  our  statute  gives  no  right  of  recovery, 
and  the  aggrieved  party  must  look  to  the  local  law  to 
ascertain  what  his  rights  are." 

Missouri  Pacific  Ry.,  61  Texas,  432  ;  Hover  v.  Pennsylvania  Ry.,  25  Ohio 
St.  667  ;  Needham  v.  Grand  Trunk  Ry.,  38  Vt.  294  ;  Smith  v.  Condry,  1 
How.  28  ;  8.  c.,  17  Pet.  20 ;  Phillips  v.  Eyre,  L.  R.  4  Q.  B.  225,  239,  and 
L.  R.  6  Q.  B.  1. 

1  Alabama  Great  Southern  Ry.  v.  Carroll,  97  Ala.  126. 


314  EMPLOYERS'  LIABILITY  ACTS. 

The  fact  that  the  person  injured  in  another  State  is 
a  citizen  of  the  State  of  process,  or  that  the  contract 
was  made  in  the  State  of  process,  does  not  alter  the 
result.  The  statute  of  the  State  of  process  will  not  be 
construed  to  apply  to  an  injury  received  outside  the 
State,  and  no  action  can  be  maintained  upon  it  therein 
unless  such  intention  is  clearly  and  unequivocally  ex- 
pressed in  the  statute.1 

In  Whitford  v.  Panama  Ry.,  23  N.  Y.  465,  the  plain- 
tiff 's  intestate  was  killed  in  New  Granada  while  crossing 
the  Isthmus  of  Panama  as  a  passenger  of  the  defendant 
railroad  company.  The  action  was  brought  under  the 
New  York  statutes  of  1847  and  1849  giving  a  right 
of  action  for  a  wrongful  act,  neglect,  or  default  result- 
ing in  death.  The  corporation  was  chartered  by  New 
York  for  the  purpose  of  operating  a  railroad  in  New 
Granada,  and  the  contract  for  carriage  was  made  in 
New  York.  It  was  held  that  the  action  could  not  be 
maintained  because  the  New  York  statutes  did  not 
apply  where  the  injury  was  committed  or  received  out- 
side of  that  State. 

Where  the  common  law  of  the  State  of  process  gives 
no  remedy  for  a  personal  injury,  the  presumption  in 
that  State  is  that  the  same  rule  prevailed  in  the  other 
State  where  the  injury  occurred.  The  fact  that  the 
State  of  process  has  given  a  remedy  by  statute  does 
not  create  a  presumption  that  a  remedy  existed  in  the 
other  State,  either  at  common  law  or  by  statute.  The 
plaintiff  must  allege  and  prove  that  the  law  of  the 

1  McCarthy  v.  Chicago  &c.  Ry.,  18  Kans.  46  ;  Needham  t>.  Grand  Trunk 
Ry.,  38  Vt.  294  ;  Whitford  v.  Panama  Ry.,  23  N.  Y.  465  ;  State  v.  Pitts- 
burgh &c.  Ry.,  45  Md.  41. 


CONFLICT   OF   LAWS.  315 

State  of  injury  gave  a  remedy  for  the  injury,  other- 
wise he  will  fail  in  his  action.1 

The  rule,  however,  that  such  statutes  do  not  apply  to 
injuries  received  in  other  States  is  merely  a  matter  of 
statutory  construction  and  not  of  constitutional  power, 
at  least  where  the  injured  person  is  a  citizen  of  the 
State.  "It  is  no  doubt  within  the  competency  of 
the  legislature  to  declare  that  any  wrong  which  may  be 
inflicted  upon  a  citizen  of  New  York  abroad  may  be  re- 
dressed here,  according  to  the  principles  of  our  law,  if 
the  wrong-doer  can  be  found  here,  so  as  to  be  subjected 
to  the  jurisdiction  of  our  courts." 2  The  court  then 
proceeds  to  state  the  reasons  for  confining  the  operation 
of  the  statute  to  injuries  received  in  New  York.3 

The  Employers'  Liability  Act  of  Indiana,  Acts  of 
1893,  ch.  180,  §  4,  expressly  declares  that  — 

"  Section  4.  In  case  any  railroad  corporation  which 
owns  or  operates  a  line  extending  into  or  through  the 
State  of  Indiana,  and  into  or  through  another  or  other 
States,  and  a  person  in  the  employ  of  such  corporation, 
a  citizen  of  this  State,  shall  be  injured,  as  provided  in 
this  act,  in  any  other  State  where  such  railroad  is 
owned  or  operated,  and  a  suit  for  such  injury  shall  be 
brought  in  any  of  the  courts  of  this  State,  it  shall  not 
be  competent  for  such  corporation  to  plead  or  prove  the 
decisions  or  statutes  of  the  State  where  such  person 
shall  have  been  injured  as  a  defence  to  the  action 
brought  in  this  State." 

^  Debevoise  v.  New  York  &c.  By.,  98  N.  Y.  377  ;  State  v.  Pittsburgh 
&c!  Ry.,  45  Md.  41  ;  Selma  &c.  Ry.  v.  Lacy,  43  Ga.  461  ;  Hyde  v. 
Wabash  &c.  Ry.,  61  Iowa,  441  ;  Nashville  &c.  Ry.  v.  Eakin,  6  Coldw. 
(Tenn.)  582  ;  McCarthy  v.  Chicago  &c.  Ry.,  18  Kans.  46,  49. 

3  Denio,  J.,  in  Whitford  v.  Panama  Ry.,  23  N.  Y.  465,  471. 

8  See,  also,  Needham  v.  Grand  Trunk  Ry.,  38  Vt.  294. 


316  EMPLOYERS'  LIABILITY  ACTS. 

§  196.    Negligence  in  One  State  causing  Injury  in 
Another  State. 

Even  if  the  Employers'  Liability  Act  of  the  State  in 
•which  the  negligence  occurs  gives  a  remedy  therefor, 
it  has  been  held  that  no  action  can  be  maintained 
therein  if  the  injury  is  received  in  another  State  where 
no  remedy  exists.  This  point  was  directly  decided  in 
Alabama  Great  Southern  Ry.  v.  Carroll,  97  Ala.  126, 
which  was  an  action  under  the  Alabama  Employers' 
Liability  Act  for  an  injury  received  in  Mississippi  caused 
by  negligence  committed  in  Alabama. 

In  answer  to  the  argument  that  the  act  of  Ala- 
bama governed  the  rights  and  liabilities  of  the  parties 
because  the  negligent  act  occurred  in  Alabama,  the 
court  says  on  page  134  :  "  It  is  admitted,  or  at  least 
cannot  be  denied,  that  negligence  of  duty  unproductive 
of  damnifying  results  will  not  authorize  or  support  a 
recovery.  Up  to  the  time  the  train  passed  out  of  Ala- 
bama no  injury  had  resulted.  For  all  that  occurred 
in  Alabama,  therefore,  no  cause  of  action  whatever 
arose.  The  fact  which  created  the  right  to  sue  —  the 
injury  without  which  confessedly  no  action  would  lie 
anywhere  —  transpired  in  the  State  of  Mississippi.  It 
was  in  that  State  therefore,  necessarily,  that  the  cause 
of  action,  if  any,  arose ;  and  whether  a  cause  of  action 
arose  and  existed  at  all  or  not  must  in  all  reason 
be  determined  by  the  law  which  obtained  at  the  time 
and  place  when  and  where  the  fact  which  is  relied  on 
to  justify  a  recovery  transpired." 

With  all  due  respect  to  this  learned  court,  its  con- 
clusion seems  to  give  too  much  weight  to  the  place  of 


CONFLICT   OF   LAWS.  317 

injury,  and  too  little  weight  to  the  place  where  the 
negligence  occurred.  It  is  true  that  negligence  without 
injury  gives  no  right  of  action,  but  it  is  equally  true 
that  injury  without  negligence  gives  no  right  of  action. 
Hence,  when  the  two  occur  in  different  States,  it  is  not 
perceived  why,  in  determining  which  state  law  should 
govern  the  case,  more  weight  should  be  given  to  the 
place  of  injury  than  to  the  place  of  negligence.  On 
the  contrary,  as  the  action  is  based  upon  negligence,  it 
would  seem  that  more  weight  should  be  given  to  the 
law  of  the  place  of  negligence  than  to  the  law  of  the 
place  of  injury.  Suppose  that  these  facts  had  been 
reversed  in  the  above  Alabama  case,  and  that  the  neo;- 

7  O 

ligence  had  occurred  in  Mississippi  and  the  injury  in 
Alabama,  all  the  other  facts  remaining  the  same,  would 
the  Alabama  court  have  held  that  the  action  was  gov- 
erned by  the  law  of  Alabama,  and  allowed  a  recovery 
under  the  Alabama  Employers'  Liability  Act,  although 
no  recovery  could  have  been  had  under  the  law  of 
Mississippi?  Again,  suppose  the  action  were  brought 
in  a  third  State,  different  from  the  State  of  negligence 
and  from  that  of  the  injury,  would  the  Employers' 
Liability  Act  of  the  State  of  negligence  be  recog- 
nized and  enforced  in  such  third  State,  or  would  the 
Employers'  Liability  Act  of  the  State  of  injury  be 
recognized  and  enforced  in  such  third  State?  If  not. 

O  7 

it  follows  that  no  action  can  be  maintained  under  the 
statute  in  any  State. 

The  Alabama  court  cites  two  cases  in  support  of  this 
view,  namely,  Nashville  &c.  Ry.  v.  Foster,  10  Lea 
(Tenn.),  351,  and  Chicago  &c.  Ry.  v.  Doyle,  60  Miss. 
977.  In  the  Tennessee  case  a  brakeman  in  the  defend- 


318  EMPLOYERS'  LIABILITY  ACTS. 

ant's  employ  was  killed  in  Alabama,  and  the  amended 
declaration  claimed  to  recover  under  an  Alabama  statute 
of  February  5,  1872.  The  negligent  act  complained 
of  occurred  in  Tennessee,  and  consisted  in  the  failure 
of  a  car-inspector  to  discover  and  remedy  a  defective 
brake-nut  on  a  railroad  car.  In  attempting  to  use  the 
brake,  the  wheel  came  off  in  the  hands  of  the  deceased, 
and  he  was  thrown  from  the  car  and  run  over.  It  was 
assumed  that  by  the  law  of  Tennessee  the  plaintiff 
could  have  recovered  if  the  injury  had  been  received  in 
that  State,  and  it  was  found  as  a  fact  that  under  the 
Alabama  law  no  recovery  could  be  had,  because  the  car- 
inspector  and  brakeman  were  considered  fellow-servants. 
It  was  held  that  the  case  was  governed  by  the  law  of 
Alabama,  where  the  injury  occurred,  and  that  the  plain- 
tiff could  not  recover  in  this  action  in  Tennessee.  In 
this  case,  however,  the  plaintiff  claimed  to  recover  only 
under  the  Alabama  statute,  and  the  question  as  to 
which  law  should  control  was  therefore  not  necessarily 
involved  in  the  decision. 

In  the  Mississippi  case  (Chicago  &c.  Ry.  v.  Doyle, 
60  Miss.  977)  a  locomotive  engineer  in  the  employ  of 
the  defendant  railroad  was  killed  in  Tennessee  through 
the  alleged  negligent  omission  of  duty  in  Mississippi  of 
another  employee  of  the  road.  The  statutes  of  both 
States  were  substantially  alike,  and  allowed  a  recovery 
for  the  negligent  killing  of  a  human  being  under 
certain  circumstances.  The  proximate  cause  of  the 
injury  was  the  negligence  of  a  fellow-servant  of  the 
deceased,  and  it  was  therefore  held  that  the  plaintiff 
could  not  recover  under  the  statute  of  either  State. 
The  court,  however,  says  on  page  984,  through  Mr. 


CONFLICT    OF   LAWS.  319 

Chief  Justice  Campbell :  "  The  right  of  the  appellee  is 
determinable  by  the  law  of  Tennessee,  in  which  State 
the  killing  of  her  husband  occurred.  .  .  .  Physical 
force  proceeding  from  this  State  and  inflicting  injury 
in  another  State  might  give  rise  to  an  action  in  either 
State,  and  vice  versa  ;  but  the  omission  of  some  duty 
in  Mississippi  cannot  transfer  a  consequence  of  it,  mani- 
fested physically  in  another  State,  to  Mississippi.  The 
cases  of  injuries  commenced  in  one  jurisdiction  and 
completed  in  another  illustrate  our  view  on  this  subject. 
The  true  view  is  that  the  legal  entity  called  the  corpo- 
ration is  omnipresent  on  its  railroad,  and  the  presence 
or  absence  of  negligence  with  respect  to  an  occurrence 
at  any  point  of  the  line  is  not  to  be  resolved  by  the 
place  at  which  any  officer  or  employee  was  stationed 
for  duty.  The  question  is  as  to  duty  operating  effectu- 
ally at  the  place  where  its  alleged  failure  caused  harm 
to  result.  The  locality  of  the  collision  was  in  Ten- 
nessee. It  was  there,  if  anywhere,  that  the  company 
was  remiss  in  duty,  for  there  is  where  its  proper  caution 
should  have  been  used." 

The  court  seems  to  have  allowed  a  fiction  con- 
cerning the  omnipresence  of  the  railroad  to  control 
and  overcome  the  fact  that  the  negligence  occurred  in 
Mississippi.  If  the  proof  shows  that  the  negligence 
occurred  in  Mississippi,  it  seems  absurd  to  hold  that 
the  corporation  was  remiss  in  duty  in  Tennessee  and 
not  in  Mississippi,  because  the  injury  was  received  in 
Tennessee.  The  employees  of  railroads  engaged  in 
interstate  business  are  peculiarly  liable  to  injuries  of 
this  character. 

Under  the  power  to  regulate  interstate  and  foreign 


320  EMPLOYERS'  LIABILITY  ACTS. 

commerce,  it  seems  that  Congress  may  provide  a  rem- 
edy in  such  case.  In  Lord  v.  Steamship  Co.,  102  U.  S. 
541,  it  was  held  that  an  act  of  Congress  (Rev.  Stat. 
§  4283),  restricting  the  common-law  liability  of  common 
carriers  engaged  in  such  commerce  for  the  negligence 
of  their  servants,  was  valid  and  constitutional  under 
the  commercial  clause.  By  parity  of  reasoning,  it 
follows  that  an  act  of  Congress  enlarging  the  common- 
law  liability  of  such  common  carriers  for  negligence  is 
also  constitutional. 

§  197.  Injuries  received  on  Navigable  Waters. 

The  general  admiralty  and  maritime  jurisdiction  of 
the  United  States  extends  wherever  public  navigation 
extends.  This  includes  not  only  the  sea,  but  also  the 
great  inland  lakes  and  all  other  navigable  waters  within 
the  United  States.1 

When  an  injury  results  in  death,  the  rule  in  admi- 
ralty is  the  same  as  that  of  the  common  law,  and,  in  the 
absence  of  an  act  of  Congress  or  of  a  state  statute,  no 
suit  in  admiralty  can  be  maintained  in  the  courts  of  the 
United  States  to  recover  damages  for  the  death  of  a 
human  being  on  the  high  seas,  or  on  waters  navigable 
from  the  sea,  caused  by  negligence.2 

In  Mahler  v.  Norwich  &c.  Co.,  35  N.  Y.  352,  the 
plaintiff's  intestate  was  killed  in  Long  Island  Sound. 
It  was  held  that  the  Sound  was  within  the  territorial 
limits  of  the  State  of  New  York,  and  that  an  action 

1  Waring  v.  Clarke,  5  How.  441  ;  Genessee  Chief  v.  Fitzhugh,  12  How. 
443;  Butler  v.  Boston  Steamship  Co.,  130  U.  S.  527,  557;  In  re  Garnett, 
141  U.  S.  1. 

2  The  Harrisburg,  119  U.  S.  199. 


CONFLICT   OP   LAWS.  321 

could  be  maintained  under  the  New  York  statute.  A 
state  statute  applying  to  death  by  wrongful  act  on 
navigable  waters  within  the  territorial  limits  of  the 
State  does  not  encroach  upon  the  commercial  power 
of  Congress,  and  is  not  void  as  an  interference  with 
interstate  commerce  merely  because  the  defendant's 
boat,  upon  which  the  wrongful  act  was  committed,  was 
engaged  in  interstate  commerce  at  the  time  of  the 
accident.1 

A  vessel  on  the  high  seas  is  for  this  purpose  con- 
sidered a  part  of  the  territory  of  the  State  in  which 
she  is  registered  and  from  which  she  hails.  As  she  is 
not  within  the  jurisdiction  of  any  foreign  nation,  and 
as  the  matter  of  a  right  of  action  for  personal  injury 
has  not  been  vested  in  and  exercised  by  the  United 
States,  she  is  regarded  as  within  the  jurisdiction  of  the 
State,  and  the  right  of  action  is  governed  by  the  laws 
of  that  State.  It  was  accordingly  held  in  McDonald 
v.  Mallory,  77  N.  Y.  546,  that,  under  the  New  York 
statutes  giving  a  right  of  action  for  causing  the  death 
of  a  human  being  by  wrongful  act  or  neglect,  an  action 
could  be  maintained  for  the  death  of  a  citizen  of  New 
York  on  the  high  seas  on  board  a  vessel  whose  home 

o 

port  was  in  that  State.2  The  contrary  was  decided 
by  Judge  Sawyer  in  Armstrong  v.  Beadle,  5  Sawyer, 
484. 

A  personal  injury  received  on  navigable  waters  is, 
however,  subject  to  the  terms  of  the  Shipowners'  Lim- 

1  Sherlock  v.  Ailing,  93  U.  S.  99. 

2  That  a  ship  at  sea  is  considered  part  of  the  territory  of  the  State  or 
nation   to  which  she  belongs,  see   Crapo  v.  Kelly,  16  Wall.  610  ;  The 
E.  B.  Ward,  17  Fed.  Rep.  456  ;  In  re  Moncan,  14  Fed.  Rep.  44. 


322  EMPLOYERS'  LIABILITY  ACTS. 

ited  Liability  Act  of  1851  (Rev.  Stat.  §§  4282-4285). 
This  Act  of  Congress  applies  not  only  to  injuries  re- 
ceived on  the  high  seas,  but  also  to  personal  injuries 
received  within  the  technical  limits  of  a  county  in  a 
State,  even  when  the  right  of  action  is  given  by  a 
statute  of  that  State.1  The  States  cannot  change  or 
neutralize  the  operation  of  the  maritime  law  in  mari- 
time cases.  This  act  of  1851  provides  in  substance 
that  when  the  injury  occurs  without  the  neglect,  privity, 
or  knowledge  of  the  shipowner,  his  liability  shall  in  no 
case  exceed  the  value  of  his  interest  in  the  vessel  and 
her  freight  then  pending.  Insurance  money  is  no  part 
of  his  interest  in  the  vessel  or  freight  within  the  mean- 
ing of  this  statute,  and  therefore  the  shipowner  may 
hold  this  money  free  from  the  claims  of  persons  who 
have  suffered  injury  or  loss  on  navigable  waters.2 

The  Act  of  Congress  of  June  26,  1884,  23  Statutes 
at  Large,  57,  reduces  the  individual  liability  of  a  ship- 
owner for  all  debts  and  liabilities  of  the  ship  to  the 
proportion  of  his  individual  share  in  the  vessel.  Sec- 
tion 4  of  the  act  of  June  19, 1886, 24  Stat.  79,  provides 
that  the  Shipowners'  Limited  Liability  "  shall  apply  to 
all  sea-going  vessels,  and  also  to  all  vessels  used  on 
lakes  or  rivers  or  in  inland  navigation,  including  canal- 
boats,  barges,  and  lighters."  This  section  has  been 
held  to  be  constitutional  as  applied  to  an  enrolled  and 
licensed  steamboat  exclusively  engaged  in  commerce  on 
a  navigable  river  above  tide-water.3 

1  Butler  v.  Boston  Steamship  Co.,  130  U.  S.  527. 

2  The  City  of  Norwich,  118  U.  S.  468  ;  Butler  v.  Boston  Steamship  Co., 
130  U.  S.  527. 

8  In  re  Garnett,  141  U.  S.  1. 


CONFLICT   OF   LAWS.  323 

§  198.  Limit  of  Damages  Recoverable  and  Distribu- 
tion thereof. 

There  is  a  difference  of  opinion  upon  the  first  ques- 
tion. 

Northern  Pacific  Ry.  v.  Babcock,  154  U.  S.  190, 
was  an  action  brought  by  an  administrator  to  recover 
damages  for  the  death  of  a  locomotive  engineer  while 
in  the  employ  of  the  railroad  company,  hi  an  accident 
caused  by  a  defective  snow-plough.  The  injury  was 
received  in  Montana  Territory,  and  the  action  was 
brought  in  the  United  States  Circuit  Court  for  the 
District  of  Minnesota.  The  Montana  statute  provided 
that  "  such  damages  may  be  given  as  under  all  the  cir- 
cumstances of  the  case  may  be  just,"  and  the  Minnesota 
statute  in  force  when  the  injury  occurred  limited  the 
amount  recoverable  in  case  of  death  to  $5,000,  though 
before  the  trial  it  was  increased  to  $10,000.  The 
plaintiff  obtained  a  verdict  for  $10,000  under  a  ruling 
that  the  case  was  governed  by  the  law  of  Montana. 
The  Supreme  Court  held  that  this  ruling  was  right, 
and  affirmed  the  judgment. 

In  New  York,  however,  it  has  been  held  that  the 
extent  of  damages  recoverable  is  governed  by  the  lex 
fori,  at  least  in  the  case  of  a  New  York  corporation 
defendant,  for  the  reason  that  the  restriction  indicates 
the  public  policy  of  the  State,  and  a  plaintiff  who 
chooses  to  avail  himself  of  their  remedial  procedure 
must  submit  to  their  remedial  limitations,  and  be  con- 
tent with  a  judgment  for  an  amount  within  the  power 
of  the  New  York  courts  to  grant.  It  was  accordingly 
decided  that  the  plaintiff's  recovery  could  not  exceed 


324:  EMPLOYERS'  LIABILITY  ACTS. 

$5,000,  the  amount  allowed  by  the  New  York  statute, 
although  by  the  statute  of  Pennsylvania,  where  the 
injury  occurred,  no  restriction  was  placed  upon  the 
amount  of  damages.1 

Upon  the  second  question  the  rule  seems  to  be  that 
the  damages  recovered  under  a  statute  of  another  State 
for  personal  injuries  should  be  distributed  according 
to  the  laws  of  such  other  State,  even  if  the  laws  of 
the  State  in  which  the  question  arises  provide  for  their 
distribution  to  other  persons.2 

§  199.  Procedure  governed  by  Lex  Fori. 

In  an  action  for  a  personal  injury  received  in  a  State 
other  than  that  of  suit,  all  matters  of  procedure  are 
governed  by  the  law  of  the  forum.  The  burden  of 
proof  is  a  matter  of  procedure  within  this  rule,  and 
therefore  the  practice  of  such  other  State  has  no  appli- 
cation. In  the  Alabama  case  of  Helton  v.  Alabama 
&c.  Ry.,  97  Ala.  275,  the  injury  was  received  in 
Georgia,  in  which  State  proof  that  the  plaintiff  has 
been  injured  by  the  defendant  is  proof  of  defendant's 
negligence,  unless  the  defendant  overcomes  it  with 
counter  proof.  In  Alabama  the  rule  is  the  contrary, 
and  in  the  case  cited  it  was  accordingly  held  that  the 
Alabama  rule  applied  and  governed  the  case. 

The'  question  whether  vindictive  or  exemplary  dam- 
ages are  recoverable  is  also  a  question  of  procedure. 
Hence,  when  a  personal  injury  was  received  in  Connect- 

1  Wooden  «.  Western  New  York  &c.  Ry.,  126  N.  Y.  10. 

2  McDonald  v.  McDonald,  28    S.  W.  Rep.  (Ky.)  482;  Dennick  v. 
Railroad  Co.,  103  U.  S.  11. 


CONFLICT   OF   LAWS.  325 

icut,  where  such  damages  are  recoverable,1  and  suit  was 
brought  in  Massachusetts,  where  they  are  not  recover- 
able, it  was  held  that  the  plaintiff  could  not  recover 
such  damages  in  Massachusetts,  because  the  lex  fori 
controlled.2  In  the  same  Massachusetts  case  it  appeared 
that  the  practice  in  Connecticut  was  to  have  the  dam- 
ages assessed  by  the  judge  alone,  and  the  plaintiff  had 
no  right  to  have  them  assessed  by  a  jury  when  the 
defendant  submitted  to  a  default.3  In  Massachusetts 
the  plaintiff  had  the  right  to  demand  an  assessment  of 
damages  by  a  jury  in  such  case,  and  it  was  held  that 
the  Massachusetts  practice  governed. 

So,  also,  all  questions  relating  to  amendments  and 
pleading  are  matters  of  procedure  within  the  meaning 
of  this  rule,  and  the  practice  of  the  State  of  process 
controls  the  practice  of  the  State  of  injury.4 

In  Massachusetts  it  has  been  held  that,  where  an 
injury  resulting  in  death  occurs  in  one  State  and  suit  is 
brought  in  another  State,  the  question  as  to  the  person 
entitled  to  sue  therefor  is  governed  by  the  lex  fori. 
"  A  succession  in  the  right  of  action,  not  existing  by 
the  common  law,  cannot  be  prescribed  by  the  laws  of 
one  State  to  the  tribunals  of  another.  It  is  upon  this 
principle  that  the  negotiability  of  contracts,  and  whether 
an  assignee  can  maintain  an  action  in  his  own  name,  is 
held  to  be  determined  by  the  lex  fori,  and  not  by  the 

1  Noyes  t>.  Ward,  19  Conn.  250  ;  Murphy  v.  New  York  &c.  Ry.,  29 
Conn.  496,  499. 

2  Higgins  v.  Central  New  England  Ry.,  155  Mass.  176,  181. 

8  (Jen.  Stats,  of  Conn,  of  1888,  §  1106  ;  Raymond  v.  Danbury  &c.  Ry., 
43  Conn.  596,  598. 

*  South  Carolina  Ry.  v.  Nix,  68  Ga.  572. 


326  EMPLOYERS'  LIABILITY  ACTS. 

lex  loci  contractus,  —  a  matter,  not  of  right,  but  of 
remedy." 

In  Pennsylvania  and  New  York  and  Georgia,  how- 
ever, the  contrary  has  been  decided.2 

In  Usher  v.  West  Jersey  By.,  126  Pa.  206,  a  widow 
brought  an  action  in  Pennsylvania  for  the  negligent 
killing  of  her  husband  in  New  Jersey.  The  New  Jer- 
sey statute  gave  the  right  of  action  to  the  personal 
representative  for  the  exclusive  benefit  of  the  widow 
and  next  of  kin.  A  like  statute  of  Pennsylvania  gave 
the  right  of  action  to  the  widow,  etc.  It  was  held  that 
the  question  as  to  who  was  entitled  to  sue  was  not  a 
mere  matter  of  remedy  or  procedure  governed  by  the 
lexfori,  but  that  the  remedy  was  so  inseparably  attached 
to  the  right  that  the  remedy  must  also  be  governed 
by  the  statute  of  the  State  giving  this  right,  and  in 
which  the  injury  was  inflicted.  It  was  accordingly  de- 
cided that  the  plaintiff  could  not  recover  as  the  widow 
of  the  deceased. 

In  Wooden  v.  Western  New  York  &c.  Ry.,  126  N.  Y. 
10,  the  plaintiff's  husband  was  killed  in  Pennsylvania 
through  the  defendant's  negligence.  The  Pennsylvania 
statute  giving  the  right  of  action  required  suit  to  be 
brought  by  the  widow,  while  the  like  statute  of  New 
York  required  the  action  to  be  brought  by  the  execu- 
tor or  administrator  of  the  deceased.  It  was  held  that 
the  lex  loci  controlled,  and  that  the  action  was  properly 
brought  by  the  widow  as  such,  and  not  as  adminis- 

1  Per  Hoar,  J.,  for  the  court,  in  Richardson  v.  New  York  Central  Ry., 
98  Mass.  85,  92. 

2  Usher  v.  West  Jersey  Ry.,  126  Pa.  St.  206  ;  Wooden  v.  Western  New 
York  &c.  Ry.,  126  N.  Y.  10  ;  Selma  &c.  Ry.  v.  Lacy,  49  Ga.  106. 


CONFLICT   OF   LAWS.  327 

tratrix.  Mr.  Justice  Finch,  in  delivering  the  court's 
opinion,  says  on  page  16 :  "  But  it  must  not  be  for- 
gotten that  the  cause  of  action  sued  upon  is  the  cause 
of  action  given  by  the  lex  loci,  and  vindicated  here  and 
in  our  tribunals  upon  principles  of  comity.  That  cause 
of  action  is  given  to  the  widow  in  her  own  right  and 
as  trustee  for  the  children,  and  we  open  our  courts  to 
enforce  it  in  favor  of  the  party  who  has  it,  and  not 
to  establish  a  cause  of  action  under  our  statute  which 
never  in  fact  arose.  .  .  .  It  is  the  cause  of  action  cre- 
ated and  arising  in  Pennsylvania  which  our  tribunals 
vindicate  upon  principles  of  comity,  and  therefore  must 
be  prosecuted  here  in  the  name  of  the  party  to  whom 
alone  belongs  the  right  of  action." 

In  a  Kansas  case  it  has  been  held  that  an  admin- 
istrator appointed  in  Missouri  could  not  maintain  an 
action  in  Kansas  for  the  negligent  killing  of  the 
deceased  in  Kansas,  because  the  Missouri  statute  giving 
a  right  of  action  in  such  case  provided  that  the  action 
should  be  brought  by  the  husband  or  wife  of  the 
deceased,  although  the  Kansas  statute  declared  that  the 
action  should  be  brought  in  the  name  of  the  personal 
representative  for  the  benefit  of  the  widow  and  chil- 
dren. The  decision  was  placed  on  the  ground  that,  as 
the  administrator  derived  all  his  powers  from  the  ap- 
pointing State,  he  could  not  do  an  act  in  Kansas  which 
he  had  not  the  power  to  perform  in  Missouri.1 

1  Limekiller  v.  Hannibal  &c.  Ry.,  33  Kaus.  83. 


CHAPTER  XVI. 


EVIDENCE. 


Section 

200.  Fellow-servant's  reputation  for 

iucompetency. 

201.  Employer's  subsequent  acts. 

202.  Previous  specific  acts  of  neg- 

ligence. 

203.  Evidence  of  customary  negli- 

gence. 

204.  Evidence  of  superintendence. 

205.  Burden  of  proving  defendant's 

negligence. 

206.  Burden  of  proving  due  care  of 

employee. 

207.  Same.     Contrary  rule  in  Ala- 

bama and  elsewhere. 

208.  Burden  of   proving  plaintiff's 

infancy. 

209.  Plaintiff's  belief  that  there  was 

no  danger. 

210.  Attorney's   authority    to    sign 

and  serve  notice  presumed. 


Section 

211.  Expert    testimony.      Strength 

of  materials,  etc. 

212.  Rule  of   railroad  company  as 

evidence. 

213.  Photograph  of  place  of  injury 

as  evidence. 

214.  Res  gestce. 

215.  Same.    Expressions  of  existing 

pain. 

216.  Remoteness.    Other  like  facts. 

217.  Compromise  offers. 

218.  Mortality  tables. 

219.  Judicial    notice.     Statutes    of 

other  States  must  be  proved 
in  state  courts. 

220.  Same.     When    federal    courts 

will  take  judicial  notice  of 
laws  of  other  States. 


§  200.  Fellow-  Servant's  deputation  for  Incompetence/. 
EVIDENCE  of  a  general  reputation  for  incompetency 
of  a  fellow-servant  whose  negligence  causes  the  plaintiff's 
injury  is  admissible  in  an  action  against  the  common 
employer.1  But  his  reputation  among  a  few  workmen 
is  not  competent.2 

1  Monahan  v.  Worcester,  150  Mass.  439 ;  Oilman  v.  Eastern  Ry.,  13 
Allen,  433,  444. 

2  Driscoll  v.  Fall  River,  163  Mass.  105. 


EVIDENCE.  329 

In  Driscoll  v.  Fall  River,  163  Mass.  105,  107,  Mr. 
Justice  Morton  for  the  court  says :  — 

"  A  general  reputation  regarding  the  incompetency 
of  a  servant  is  admissible  on  the  ground  that  it  fur- 
nishes some  reason  to  believe  that,  if  the  master  had 
exercised  due  care,  he  might  have  learned  or  heard  of 
the  incompetency.  But  the  reputation  of  a  foreman 
amongst  a  few  workmen  employed  under  him  is  not  a 
general  reputation.  It  is  merely  the  opinion  of  a  small 
number  of  men,  of  which  there  is  no  sufficient  reason 
to  suppose  the  master  may  be  cognizant,  or  which  he 
may  be  bound  to  heed." 

When  the  action  is  for  the  negligent  act  of  a  compe- 
tent superintendent  under  the  statute,  evidence  of  the 
general  reputation  of  the  superintendent  as  a  careful 
workman  is  inadmissible.1 

§  201.  Employer's  Subsequent  Acts. 

At  common  law,  the  rule  is  well  settled  in  most 
States,  though  the  contrary  rule  prevails  in  Pennsylva- 
nia and  Kansas,  that  in  an  action  for  the  employer's 
negligence,  his  subsequent  acts  in  taking  additional  pre- 
cautions to  prevent  similar  injuries  from  occurring  in 
the  future  are  not  admissible  in  evidence  against  him. 
Such  acts  do  not  amount  to  an  admission  of  negligence 
on  his  part.2 

1  Malcolm  v.  Fuller,  152  Mass.  160. 

2  Columbia  Railroad  Co.  v.  Hawthorne,  144  U.  S.  202  ;  Menard  v.  Bos- 
ton &  Maine  Ry.,  150  Mass.  386  ;  Downey  v.  Sawyer,  157  Mass.  418  ; 
Corcoran  v.  Peekskill,  108  N.  Y.  151  ;  Nalley  v.  Hartford  Carpet  Co.,  51 
Conn.  524  ;  Terre  Haute  &c.  Ry.  v.  Clem,  123  Ind.  15  ;  Hodges  v.  Perci- 
val,  132  HI.  53  ;  Ely  v.  St.  Louis  &c.  Ry.,  77  Mo.  34  ;  Hudson  v.  Chicago 
&c.  Ry.,  59  Iowa,  581  ;  Morse  v.  Minneapolis  &c.  Ry.,  30  Minn.  465  ; 
Hart  v.  Lancashire  &c.  Ry.,  21  L.  T.  (N.  S.)  261.      Contra,  McKee  v. 
Bidwell,  74  Pa.  St.  218  ;  St.  Louis  &c.  Ry.  v.  Weaver,  35  Kans.  412. 


330  EMPLOYEES'  LIABILITY  ACTS. 

The  same  rule  has  been  applied  to  an  action  under 
the  Massachusetts  Employers'  Liability  Act  for  the 
death  of  an  employee,  although  the  third  section  pro- 
vides that  the  amount  of  compensation  in  case  of  death 
is  to  be  assessed  "  with  reference  to  the  degree  of  culpa- 
bility of  the  employer  herein,  or  the  person  for  whose 
negligence  he  is  made  liable."  In  delivering  the  court's 
opinion  Mr.  Justice  Lathrop  says :  — 

"  But,  if  evidence  is  not  admissible  to  show  culpabil- 
ity, we  fail  to  see  how  it  can  be  admissible  to  show  the 
degree  of  culpability."  * 

§  202.  Previous  Specific  Acts  of  Negligence. 

In  an  action  for  negligence  causing  personal  injury, 
evidence  is  not  admissible  that  the  same  person  had 
previously  committed  certain  negligent  acts,  or  that  he 
had  performed  certain  careful  acts.  "  If  such  evidence 
were  to  be  received,  it  might  be  necessary  to  investigate 
the  conduct  of  the  actor  in  every  act  of  his  life,  and  to 
draw  inferences  from  acts  similar  and  dissimilar,  show- 
ing every  degree  of  care  or  negligence.  ...  To  do 
this  would  introduce  a  multiplicity  of  issues  of  which 
the  parties  ordinarily  could  not  have  previous  notice, 
and  which  it  would  be  impracticable  properly  to  try." 2 

For  the  same  reasons  it  is  held  in  Massachusetts  and 
in  other  States,  though  there  are  some  decisions  to  the 
contrary,  that  a  person's  reputation  or  character  for 
care  or  negligence  cannot  be  shown  by  evidence  of 
particular  acts.3 

1  Shinners  v.  Proprietors,  154  Mass.  168,  171. 

3  Connors  v.  Morton,  160  Mass.  333,  334,  335,   per  Knowlton,  J. ; 
Maguire  v.  Middlesex  Ry.,  115  Mass.  239. 

3  Hatt  v.  Nay,  144  Mass.  186  ;  Frazier  v.  Pennsylvania  Ry.,  38  Pa.  St. 


EVIDENCE.  331 

§  203.  Evidence  of  Customary  Negligence. 

In  an  action  by  a  brakeman  against  a  railroad  com- 
pany under  the  Massachusetts  statute,  evidence  that  it 
is  customary  for  brakemen  to  jump  from  moving  freight 
trains  without  looking  to  see  where  they  would  alight, 
and  that  this  was  done  with  the  knowledge  and  ap- 
proval of  the  defendant's  superintendent,  is  not  admis- 
sible.1 But  evidence  that  it  is  customary  to  inspect 
freight  trains  in  motion  is  admissible,  for  the  purpose 
of  showing  that  a  car-inspector,  who  is  injured  while 
inspecting  a  moving  freight  train,  is  in  the  exercise  of 
due  care  and  diligence.2 

In  an  action  under  the  Massachusetts  act  it  was  held 
that  evidence  that  the  plaintiff  had  boasted  of  his  abil- 
ity to  keep  out  of  the  way  of  railroad  trains  was  admis- 
sible against  him  in  a  suit  against  the  railroad  company 
for  personal  injuries  occasioned  by  being  run  over  by  a 
train,  as  bearing  upon  the  question  of  his  caref  ulness  or 
readiness  to  take  risks.3 

§  204.  Evidence  of  Superintendence. 

Evidence  of  a  habit  or  custom  not  to  inspect  railroad 

cars  on  their  arrival  at  a  certain  place  is  competent  to 

show  that  an  injury  caused  by  a  brake-wheel  and  nut 

coming  off   while  the  brakeman  was   performing   his 

104.    Contra,  Baulic  v.  New  York  &c.  Ry.,  59  N.  Y.  356  ;  Pittsburgh  &c. 
Ry.  v.  Ruby,  38  Ind.  294. 

1  Thompson  v.  Boston  &  Maine  Ry.,  153  Mass.  391.     A  like  rule  pre- 
vails in  Alabama  at  common  law.     Warden  v.  Louisville  &c.  Ry.,  94  Ala. 
277. 

2  Steffe  v.  Old  Colony  Ry.,  156  Mass.  262. 

8  Brouillette  v.  Connecticut  River  Ry.,  162  Mass.  198. 


332  EMPLOYERS'  LIABILITY  ACTS. 

duty  was  due  to  improper  superintendence,  for  which 
the  employer  would  be  liable.1  But  a  mere  failure  to 
inspect  on  a  single  occasion  would  be  evidence  only  of 
the  negligence  of  a  fellow-servant,  for  which  the  em- 
ployer would  not  be  liable  at  common  law.2 

In  an  action  under  the  Alabama  act  for  a  defect  in 
the  brake  of  a  railroad  car,  it  was  held  that  the  burden 
was  on  the  plaintiff,  a  brakeman,  to  prove  that  the 
defect  existed  when  the  train  was  made  up,  or  at  a  sta- 
tion where  it  could  have  been  inspected,  and  that  the 
defect  was  either  known  to  the  car-inspector  there,  or 
might  have  been  discovered  by  him  by  the  exercise  of 
due  diligence,  and  that  such  defect  was  the  proximate 
cause  of  the  injury.3 

§  205.  Burden  of  proving  Defendant's  Negligence. 

At  common  law  the  burden  of  proving  that  the 
defendant's  negligence  caused  the  plaintiff's  injury  is 
upon  the  plaintiff.4 

A  like  rule  prevails  under  the  Employers'  Liability 
Act.5  Where  the  injury  was  caused  by  the  slipping  of 
a  flight  of  movable  stairs  belonging  to  a  third  person, 
it  was  held  that  proof  of  mere  knowledge  on  the 
defendant's  part  that  the  stairs  were  movable,  without 
any  evidence  to  show  that  movable  stairs  were  unsafe 
in  themselves  or  unsuitable  for  the  place,  or  that  the 
defendants  knew  or  had  reason  to  suppose  that  the 

1  Coffee  v.  New  York  &c.  Ry.,  155  Mass.  21. 

2  Mackin  v.  Boston  &  Albany  Ry.,  135  Mass.  201. 

3  Louisville  &c.  Ry.  v.  Binion,  98  Ala.  570. 

4  Louisville  &c.  Ry.  v.  Allen,  78  Ala.  494. 

5  Regan  v.  Donovan,  159  Mass.  1,  3  ;  Louisville  &c.  Ry.  v.  Biniou,  98 
Ala.  570. 


EVIDENCE.  333 

owner  would  leave  them  insecurely  placed,  is  not  suf- 
ficient to  sustain  this  burden  of  proof.1 

So,  when  the  action  is  for  an  injury  caused  by  a 
defect  in  the  condition  of  the  ways,  etc.,  the  burden  is 
upon  the  plaintiff  to  show  that  the  defect  arose  from, 
or  had  not  been  discovered  or  remedied  owing  to,  the 
negligence  of  the  defendant,  or  of  some  person  in  his 
employ  and  entrusted  with  the  duty  of  seeing  that  the 
ways,  etc.,  were  in  proper  condition.2 

§  206.  Burden  of  proving  Due  Care  of  Employee. 

In  Massachusetts  and  in  some  other  States  the  burden 
is  upon  the  plaintiff  to  prove  that  he  was  in  the  exer- 
cise of  due  care  at  the  time  of  the  injury.  This  rule 
applies  to  actions  under  the  Employers'  Liability  Act, 
as  well  as  to  actions  at  common  law.  If  the  evidence 
is  as  consistent  with  carelessness  as  with  due  care,  the 
action  cannot  be  maintained.3 

When  the  act  alleged  to  be  negligent  points  as 
clearly  to  the  negligence  of  a  fellow-servant  as  to  that 
of  the  defendant  himself,  or  of  one  of  his  servants  for 
whose  negligence  he  is  liable  under  the  statute,  the 
plaintiff  cannot  recover.4 

1  Regan  v.  Donovan,  159  Mass.  1. 

2  Louisville  &c.  Ry.  v.  Campbell,  97  Ala.  147,  151. 

8  Shea  v.  Boston  &  Maine  Ry.,  154  Mass.  31  ;  Browne  v.  New  York 
&c.  Ry.,  158  Mass.  247 ;  Irwin  v.  Alley,  158  Mass.  249  ;  Murphy  v. 
Deane,  101  Mass.  455 ;  Chandler  v.  New  York  &c.  Ry.,  159  Mass.  589. 
In  the  above  cases  it  was  held  that  the  plaintiff  had  failed  to  sustain  this 
burden  of  proof  and  could  not  recover.  In  the  following  cases  it  was 
held  that  he  had  sustained  the  burden  of  proof  :  Maher  v.  Boston  & 
Albany  Ry.,  158  Mass.  36  ;  Thyng  v.  Fitchburg  Ry.,  156  Mass.  13 ; 
Maguire  v.  Fitchburg  Ry.,  146  Mass.  379. 

*  Thyng  v.  Fitchburg  Ry.,  156  Mass.  13.    The  rule  is  otherwise  when 


334  EMPLOYERS'  LIABILITY  ACTS. 

Where  all  the  circumstances  attending  the  injury  are 
in  evidence,  the  mere  absence  of  evidence  of  fault 
on  the  part  of  the  injured  employee  may  justify  the 
inference  of  due  care.1  But  where  there  is  an  entire 
absence  of  evidence  as  to  what  he  was  doing  at  the 
time  of  the  injury,  the  inference  of  due  care  does  not 
arise,  and  the  plaintiff  fails  to  sustain  the  burden  of 
proof.2 

When  there  is  no  direct  evidence  as  to  how  the 
injury  occurred,  or  as  to  whether  the  injured  employee 
was  in  the  exercise  of  due  care,  and  these  questions 
can  be  answered  only  by  conjecture,  an  action  under 
the  Massachusetts  act  cannot  be  sustained  in  the  state 
courts.3 

§  207.  Same.     Contrary  Rule  in  Alabama  and 

Elsewhere. 

In  Alabama,  however,  the  burden  is  not  upon  the 
plaintiff  to  prove  that  he  was  in  the  exercise  of  due 
care  at  the  time  of  his  injury.  Want  of  due  care  on 
his  part  is  a  matter  of  defence,  and  must  be  alleged 
and  proved  by  the  defendant  in  actions  under  the 
Employers'  Liability  Act  as  well  as  at  common  law.4 
A  like  rule  prevails  in  Colorado  at  common  law,5  and 

the  person  injured  is  not  an  employee  of  the  defendant ;  for  in  this  case 
the  defendant  is  liable  for  the  negligence  of  any  of  its  servants,  and  the 
rule  of  fellow-servants  does  not  apply. 

1  Maher  v.  Boston  &  Albany  Ry.,  158  Mass.  36. 

2  Tyndale  v.  Old  Colony  Ry.,  156  Mass.  503. 
8  Irwin  v.  Alley,  158  Mass.  249. 

4  Mary  Lee  Coal  Co.  v.  Chambliss,  97  Ala.  171  ;  Bromley  v.  Birming- 
ham Ry.,  95  Ala.  397. 

5  Moffatt  v.  Tenney,  17  Colo.  189  ;  Kansas  Pacific  Ry.  u.  Twombly,  3 
Colo.  125. 


EVIDENCE.  335 

probably  also  under  the  Employers'  Liability  Act  of 
1893. 

In  the  federal  courts,  also,  the  rule  is  contrary  to  the 
Massachusetts  rule.  The  well-settled  law  of  the  federal 
courts  is  that  "  contributory  negligence  on  the  part  of 
the  plaintiff  need  not  be  negatived  or  disproved  by 
him,  but  the  burden  of  proving  it  is  upon  the  defend- 
ant." l  This  seems  to  be  the  better  rule,  as  such 
negligence  is  more  properly  a  matter  of  defence  than 
the  want  of  it  is  a  ground  of  action.  Especially  is  this 
true  when  an  employee  is  killed  when  no  one  is  near 
him.  In  such  case,  if  the  Massachusetts  rule  was 
strictly  enforced,  a  verdict  for  the  plaintiff  would 
be  impossible.  The  rule  has  been  somewhat  relaxed, 
however,  so  as  to  allow  a  recovery  where  all  the  circum- 
stances attending  the  injury  are  in  evidence,  and  they 
fail  to  show  any  fault  on  the  part  of  the  injured 
person,  upon  the  ground  that  an  inference  of  due  care 
is  justified  under  these  facts.2  But  where  there  is  no 
direct  evidence  as  to  what  he  was  doing,  or  as  to  how 
the  injury  occurred,  no  inference  of  due  care  is  justified, 
and  the  plaintiff  cannot  recover  in  the  state  courts  of 
Massachusetts.3  In  the  federal  courts,  however,  sitting 
even  in  Massachusetts,  a  recovery  is  not  barred  in  this 
last  case.4 

1  Railroad  Co.  v.  Gladmon,  15  Wall.  401  ;  Indianapolis  Co.  v.  Horst, 
93  U.  S.  291  ;  Northern  Pacific  Ry.  v.  Mares,  123  U.  S.  710 ;  Texas  & 
Pacific  Ry.  v.  Volk,  151  U.  S.  73,  77. 

2  Maher  v.  Boston  &  Albany  Ry.,  158  Mass.  36. 

3  Tyndale  v.  Old  Colony  Ry.,  156  Mass.  503  ;  Irwin  v.  Alley,  158  Mass. 
249. 

4  Griffin  v.  Overman  Wheel  Co.,  61  Fed.  Rep.  568.     (The  concurring 
opinion  of  Webb,  J.,  seems  to  state  the  true  rule.) 


336  EMPLOYERS'  LIABILITY  ACTS. 

§  208.  Burden  of  proving  Plaintiff's  Infancy. 
Where  the  plaintiff  relies  upon  his  infancy  to  avoid 
a  settlement  for  personal  injuries  received  while  in  the 
defendant's  employ,  the  burden  of  proving  infancy  at 
the  time  of  such  settlement  is  upon  him,  and  the  testi- 
mony of  his  brother,  that  the  reputation  in  the  family 
was  that  the  plaintiff  was  under  twenty-one  years  of 
age  at  that  time,  is  not  admissible.1 

§  209.  Plaintiff's  Belief  that  there  was  JVb  Danger. 
On  the  issue  as  to  whether  the  plaintiff  was  in  the 
exercise  of  due  care  and  diligence  at  the  time  of  the 
injury,  his  belief  that  there  was  no  danger,  after  an 
assurance  to  that  effect  from  the  defendant's  superin- 
tendent under  whom  he  was  working,  is  admissible  in 
evidence.2 

§  210.  Attorney's  Authority  to  sign  and  serve  Notice 
presumed. 

When  notice  of  the  time,  place,  and  cause  of  the 
injury  is  signed  by  an  attorney  at  law  on  behalf  of 
the  injured  employee,  the  notice  is  admissible  in  evi- 
dence, without  proof  that  it  was  given  by  the  plaintiff  's 
direction,  or  that  the  attorney  was  in  fact  authorized  to 
sign  and  serve  it.  In  the  absence  of  any  proof  to  the 
contrary,  it  will  be  presumed  that  the  attorney  had  such 
authority.  "  His  declaration  that  he  had  authority,  or 
his  assumption  of  authority,  is  prima  facie  sufficient." 3 

1  Rogers  v.  De  Bardeleben  Coal  Co.,  97  Ala.  154. 

2  Malcolm  v.  Fuller,  152  Mass.  160. 

8  Steffe  v.  Old  Colony  Ry.,  156  Mass.  262,  264.     See,  also,  Manchester 


EVIDENCE.  337 

§  211.  Expert  Testimony.  Strength  of  Materials,  etc. 

A  person  who  has  made  a  special  study  of  the 
strength  of  materials,  and  the  proper  mode  of  building 
structures  to  sustain  weight,  may  state  his  opinion  as  to 
whether  a  staging  erected  in  a  specified  way  can  safely 
bear  a  particular  load.  So  held  in  an  action  under  the 
Massachusetts  Employers'  Liability  Act  to  recover  for 
an  injury  received  by  the  fall  of  a  staging  upon  which 
a  load  of  wood  had  been  placed.1 

In  an  action  under  the  Alabama  act  for  a  defect  in 
the  defendant's  coal-way,  it  was  held  that  an  expert 
may  testify  that  the  general  rule  is  to  leave  three  feet 
between  the  wall  of  a  coal-mine  entry  and  the  coal-car, 
and  that  a  space  of  one  foot  and  a  half  was  unsafe.2 
The  plaintiff  had  been  crushed  between  the  wall  and 
his  car  while  attempting  to  sprag  the  wheels  on  a 
down  grade. 

Men  who  have  been  "  railroading  "  for  fifteen  years 
and  are  familiar  with  the  duties  of  brakemen  may 
testify  as  experts  as  to  the  proper  position  of  brakemen 
on  the  cars,  and  as  to  the  danger  of  riding  on  the 'edge 
of  the  car  with  the  feet  hanging  over  the  side.3 

A  man  who  has  operated  trains  on  a  railroad  for 
eight  years  may  state  his  opinion  as  to  the  effect  of  a 
car  heavily  loaded  or  empty  running  over  an  improperly 
set  switch.4 

Bank  v.  Fellows,  28  N.  H.  302  ;  Bridgton  v.  Bennett,  23  Me.  420  ;  Addi- 
son  v.  Bishop,  2  Vt.  231. 

1  Prendible  v.  Connecticut  River  Manuf.  Co.,  160  Mass.  131. 

2  McNamara  v.  Logan,  100  Ala.  187. 

3  Schlaff  v.  Louisville  &c.  Ry.,  100  Ala.  377. 

4  Louisville  &c.  Ry.  v.  Mothershed,  97  Ala.  261. 


338  EMPLOYEES'  LIABILITY  ACTS. 

In  an  action  under  the  Alabama  statute  to  recover 
damages  for  an  injury  received  while  attempting  to 
uncouple  a  car  from  a  road-engine  without  a  flat-car 
attached  to  the  engine,  a  switchman,  who  has  been 
"  about  the  yard  "  for  twenty  years,  may  testify  as  an 
expert  that  it  is  more  dangerous  to  uncouple  a  car  from 
a  road-engine  which  has  no  flat-car  attached  to  it  than 
if  it  had  a  flat-car  attached  to  it,  because  the  flat- 
car  obviates  the  necessity  of  standing  on  the  ground 
between  the  two  while  doing  the  uncoupling.1 

A  witness  who  testifies  that  he  has  had  much  experi- 
ence in  the  use  of  a  machine  known  as  a  "  tipple,"  used 
in  emptying  refuse  from  coal-cars,  and  that  he  was  well 
acquainted  with  its  use,  if  not  with  its  construction, 
may  testify  that  the  pattern  of  the  tipple  which  killed 
the  plaintiff's  intestate  was  "  reasonably  adapted  for 
the  purpose  for  which  it  was  used ; "  and,  if  he  knew 
its  condition  at  the  time  of  the  injury,  he  may  state 
whether  or  not  it  was  in  good  repair.2 

In  McGuerty  v.  Hale,  161  Mass.  51,  a  boy  of  eighteen 
years  was  injured  by  a  machine  while  in  the  defendant's 
employ.  The  plaintiff  asked  a  witness  called  as  an 
expert  the  following  question :  "  Should  you  consider 
that  a  boy  eighteen  years  old,  a  short  'boy  like  the 
plaintiff  here,  was  a  proper  person  to  put  to  work  on 
such  a  machine  as  that  before  you  ?  "  It  was  held  that 
the  question  was  not  one  for  an  expert  to  answer,  and 
that  it  was  properly  excluded.3 

1  Mobile  &c.  Ry.  v.  George,  94  Ala.  199. 

2  Alabama  Coal  Co.  v.  Pitts,  98  Ala.  285. 

8  For  other  illustrations  of  expert  testimony  in  actions  for  personal 
injuries  to  employees,  see  Connelly  v.  Hamilton  Woollen  Co.,  163  Mass. 
156  ;  Lang  v.  Terry,  163  Mass.  138  ;  Twomey  v.  Swift,  163  Mass.  273  ; 
Ouillette  v.  Overman  Wheel  Co.,  162  Mass.  305. 


EVIDENCE.  339 

§  212.  Rule  of  Railroad  Company  as  Evidence. 

Upon  the  question  of  contributory  negligence  of  an 
employee  of  a  railroad  in  coupling  cars  by  hand,  a  rule 
of  the  company,  requiring  coupling  to  be  done  by  sticks 
and  not  by  hand,  is  admissible  in  an  action  under  the 
Alabama  Employers'  Liability  Act.1 

In  an  action  under  the  Alabama  statute  for  the 
negligence  of  a  hostler  in  starting  up  a  locomotive 
switch-engine  while  the  plaintiff  was  cleaning  it,  if  the 
defendant  railroad  relies  upon  a  verbal  rule  forbidding 
hostlers  to  move  switch-engines,  evidence  for  the  plain- 
tiff that  hostlers  were  nevertheless  in  the  habit  of  mov- 
ing such  engines  is  competent  to  show  that  the  railroad 
company  acquiesced  in  a  breach  of  its  rule.2 

§  213.  Photograph  of  Place  of  Injury  as  Evidence. 
A  photograph  of  the  place  of  the  injury,  verified  by 
proof  that  it  is  a  true  representation  of  the  locality, 
is  competent  in  evidence.3  Under  the  Massachusetts 
practice,  the  question  as  to  whether  the  photograph 
is  sufficiently  verified  is  a  preliminary  question  of  fact, 
to  be  decided  by  the  judge  presiding  at  the  trial,  and 
is  not  open  to  exception.4 

1  Memphis  &c.  Ry.  v.  Askew,  90  Ala.  5  ;  Richmond  &c.  Ry.  v.  Hissong, 
97  Ala.  187. 

2  Louisville  &c.  Ry.  v.  Richardson,  100  Ala.  232  ;  Hissong  v.  Richmond 
&c.  Ry.,  91  Ala.  514.     But  see  Richmond  &c.  Ry.  v.  Hissong,  97  Ala. 
187. 

8  Blair  v.  Pelham,  118  Mass.  420 ;  Kansas  City  &c.  Ry.  v.  Smith,  90 
Ala.  25  ;  Udderzook  v.  Commonwealth,  76  Pa.  St.  340  ;  Ruloff  v.  People, 
45  N.  Y.  213  ;  Church  ».  Milwaukee,  31  Wis.  512. 

4  Blair  v.  Pelham,  118  Mass.  420,  421. 


340  EMPLOYEES'  LIABILITY  ACTS. 

§  214.  Ees  GestcB. 

In  an  action  under  the  Alabama  Employers'  Liability 
Act  by  the  administrator  of  a  deceased  employee,  it  was 
held  that  a  declaration  made  by  the  deceased,  within 
five  minutes  after  receiving  the  fatal  injuries,  that  he 
supposed  it  was  the  carelessness  of  the  foreman,  in 
answer  to  a  question  as  to  how  it  happened,  is  not  part 
of  the  res  gestce,  nor  admissible  on  any  other  principle. 
It  was  not  made  spontaneously,  but  in  an  answer  to  a 
question ;  it  did  not  illustrate,  or  explain,  or  receive 
support  from  the  transaction  itself,  and  the  time  after 
the  injury  was  too  long.1 

§  215.  Same.  Expressions  of  Existing  Pain. 
In  Northern  Pacific  Ky.  v.  Urlin,  158  U.  S.  271, 
275,  the  court  says  by  Mr.  Justice  Shiras :  "  The  dec- 
larations of  a  party  himself,  to  whomsoever  made,  are 
competent  evidence,  when  confined  strictly  to  such 
complaints,  expressions,  and  exclamations  as  furnish 
evidence  of  a  present  existing  pain  or  malady,  to  prove 
his  condition,  ills,  pains,  and  symptoms,  whether  aris- 
ing from  sickness,  or  from  an  injury  by  accident  or 
violence.  If  made  to  a  medical  attendant  they  are  of 
more  weight  than  if  made  to  another  person." 2  This 
was  a  case  of  personal  injuries  to  a  passenger  through 
the  negligence  of  the  defendant  railroad. 

1  Richmond  &c.  Ry.  v.  Hammond,  93  Ala.  181.    See,  also,  Alabama  &c. 
Ry.  v.  Hawk,  72  Ala.  112  ;  Memphis  &c.  Ry.  v.  Womack,  84  Ala.  149 ; 
Louisville  &c.  Ry.  v.  Pearson,  97  Ala.  211. 

2  See,  also,  Fleming  v.  Springfield,  154  Mass.  520. 


EVIDENCE.  341 

§  216.  Remoteness.     Other  Like  Facts. 

It  seems  impossible  to  frame  a  general  rule  which 
will  be  of  much  assistance  in  determining  whether  other 
facts,  like  those  alleged  to  exist  by  the  plaintiff  as  the 
ground  of  his  action  for  personal  injuries,  are  too 
remote  to  be  competent  as  evidence  or  not.  A  few 
illustrations  only  will  be  attempted. 

In  Shea  v.  Glendale  Co.,  162  Mass.  463,  the  plaintiff 
alleged  that  he  was  poisoned  by  inhaling  dust  contain- 
ing white  lead,  which  came  from  the  rubber  thread  on 
which  he  worked  in  the  defendant's  mill.  The  plaintiff 
offered  to  show  that  other  operatives  who  worked  in  the 
same  room  with  the  plaintiff,  at  the  same  time  and  at  a 
few  months  prior  and  subsequent  thereto,  had  suffered 
from  lead-poisoning.  It  was  held  that  the  evidence  was 
admissible. 

For  other  illustrations  of  what  evidence  is  admissible 
or  inadmissible  upon  the  ground  of  remoteness,  in  per- 
sonal injury  suits,  see  Tremblay  v.  Harnden,  162 
Mass.  383. 

§  217.  Compromise  Offers. 

Neither  at  common  law1  nor  under  the  Employers' 
Liability  Act2  is  the  admission  of  a  party,  made  by 
way  of  compromise  or  amicable  adjustment  of  a  claim 
for  personal  injuries  against  an  employer,  competent 
evidence  against  the  party  making  it.  In  Collier  v. 
Coggins,  ubi  siqwa,  it  was  held  to  be  error  to  allow  the 
plaintiff  to  prove  that  the  defendant  had  stated  to  the 

1  Jackson  v.  Clopton,  66  Ala.  29. 

2  Collier  v.  Coggins,  103  Ala.  000  ;  15  So.  Rep.  578. 


342  EMPLOYERS*    LIABILITY   ACTS. 

plaintiff  that  he  thought  the  plaintiff  could  get  seventy- 
five  dollars  in  compromise  of  his  claim. 

§  218.   Mortality  Tables. 

In  Alabama  and  some  other  jurisdictions  it  is  held 
that  the  American  Mortality  Tables,  and  other  standard 
life  and  annuity  tables,  are  admissible  in  evidence,  in 
actions  for  personal  injuries  to  employees,  upon  the 
question  of  the  plaintiff's  probable  length  of  life.  Even 
when  the  plaintiff's  occupation  is  more  hazardous  than 
that  of  the  persons  included  in  the  tables,  they  are  still 
admissible,  but  this  circumstance  should  be  considered 
by  the  jury  in  estimating  his  expectancy  of  life  and  in 
fixing  the  amount  of  damages.1  "  They  are  not  con- 
clusive upon  the  question  of  the  duration  of  life,  but 
are  competent  to  be  weighed  with  other  evidence. 
The  physical  condition  of  the  injured  person  at  the 
time  of  and  next  preceding  the  injury,  his  general 
health,  his  avocation  in  life  with  respect  to  danger,  his 
habits,  and  probably  other  facts,  properly  enter  into 
the  question  of  the  probable  duration  of  life.' 


»  2 


§  219.  Judicial  Notice.     Statutes  of  Other  States 
must  be  proved  in  State  Courts. 

The  court  cannot  take  judicial  notice  of  what  mech- 
anism is  in  a  car-brake ;  nor  when  or  how  it  is  liable  to 
get  out  of  repair  ;  nor  what  causes  it  to  stick.3 

1  Birmingham  Ry.  v.  Wilmer,  97  Ala.  165  ;  Richmond  &c.  Ry.  v.  His- 
song,  97  Ala.  187  ;  Central  Railroad  v.  Richards,  62  Ga.  306  ;  Santer  v. 
New  York  Central  Ry.,  66  N.  Y.  50  ;  McDonald  v.  Chicago  &c.  Ry.,  26 
Iowa,  124 ;  Vicksburg  &c.  Ry.  v.  Putnam,  118  U.  S.  545. 

2  Mary  Lee  Coal  Co.  v.  Chambliss,  97  Ala.  171,  175,  per  Coleman,  J., 
for  the  court. 

3  Louisville  &c.  Ry.  v.  Binion,  98  Ala.  570. 


EVIDENCE.  343 

In  the  courts  of  most  of  the  States,  the  statutory  law 
of  a  sister  State  is  regarded,  not  as  matter  of  law  of 
which  the  court  will  take  judicial  notice,  but  as  matter 
of  fact  which  must  be  both  alleged  and  proved.1  It 
follows  from  this  rule  that  a  person  who  sues  in  one 
State  under  a  statute  of  another  State,  for  a  personal 
injury  received  in  such  other  State,  must  allege  and 
prove  the  law  of  such  other  State  as  a  fact,  and  also 
the  facts  which  give  him  a  right  of  action  under  that 
law.2  When  the  right  of  action  is  given  by  statute  of 
the  State  of  process,  there  is  no  presumption  that  the 
State  where  the  injury  was  received  has  a  like  statute ; 3 
and,  if  not  given  by  the  law  of  the  State  of  injury,  no 
action  can  be  maintained  elsewhere.4 

When  the  common  law  of  the  State  of  process  does 
not  give  a  right  of  action  for  a  cause  of  action  arising 
in  and  governed  by  the  law  of  another  State,  the  law 
of  such  other  State  must  be  proved  as  a  fact,  and  will 
not  be  taken  notice  of  by  the  court  unless  so  proved  at 
the  trial.  Even  when  the  State  of  process  has  a  stat- 
ute conferring  the  right  of  action,  the  court  will  not 

1  Knapp  v.  Abell,  10  Allen  (Mass.),  485,  488  ;  Seymour  v.  Sturgess,  26 
N.  Y.  134  ;  Rice  v.  Merrimack  Co.,  56  N.  H.  114  ;  Salt  Lake  Nat.  Bk.  v. 
Hendrickson,  40  N.  J.  L.  52  ;  Coates  v.  Mackey,  56  Md.  416,  419  ;  Horton 
v.  Critchfield,  18  111.  133. 

2  McLeod  v.  Connecticut  &c.  Ry.,  58  Vt.  727  ;  Leonard  v.  Columbia 
Nav.  Co.,  84  N.  Y.  48  ;  Palfrey  v.  Portland  &c.  Ry.,  4  Allen  (Mass.),  55, 
56  ;  Post  v.  Toledo  &c.  Ry.,  144  Mass.  341,  342  ;  Walsh  v.  New  York  &c. 
Ry.,  160  Mass.  571. 

3  Selma  &c.  Ry.  v.  Lacy,  43  Ga.  461 ;  Whitford  v.  Panama  Ry.,  23 
N.  Y.  465  ;  Wooden  v.  Western  New  York  &c.  Ry.,  126  N.  Y.  10  ;  Allen 
v.  Pittsburgh  &c.  Ry.,  45  Md.  41. 

*  Ante,  §  195  ;  Debevoise  v.  New  York  &c.  Ry.,  98  N.  Y.  377. 


34:4  EMPLOYERS'  LIABILITY  ACTS. 

presume,  without  proof,  that  the  law  of  the  other  State 
is  the  same.1 

In  Kelley  v.  Kelley,  161  Mass.  Ill,  Mr.  Justice  Allen, 
for  the  court,  says  :  "  In  the  absence  of  anything  to 
show  the  contrary,  there  is  a  presumption  that  the  com- 
mon law  of  another  State  is  like  that  prevailing-  here ; 
but  this  presumption  does  not  extend  to  the  statutes  of 
another  State."  Page  112.2  "  These  [statutes]  must 
be  proved  as  facts  at  the  trial ;  and  where  a  question 
of  the  law  of  another  State  is  in  controversy,  the  party 
upon  whom  the  burden  lies  will  fail  unless  evidence  is 
produced  to  sustain  his  view  ;  and  statutes  and  decisions 
which  were  not  put  in  evidence  at  the  trial  cannot  be 
used  for  the  first  time  at  the  argument  of  the  case 
before  us  for  the  purpose  of  proving  the  law  of  such 
State."  Page  114.3 

§  220.    Same.     When   Federal    Courts   will    take 
Judicial  Notice  of  Laws  of  Other  States. 

The  federal  courts,  when  exercising  their  original 
jurisdiction,  take  judicial  notice,  without  allegation  or 
proof,  of  the  public  laws  of  all  the  States,  as  well  as  of 
the  United  States.  This  includes  not  only  the  laws 
of  the  State  in  which  they  sit,  but  also  the  laws  of  the 
other  States.4  The  state  courts,  however,  generally 

1  Whitford  v.  Panama  Ry.,  23  N.  Y.  465. 

2  Citing  Harris  v.  White,  81  N.  Y.  532,  544  ;  Wilcox  Silver  Plate  Co.  v. 
Green,  72  N.  Y.  17. 

8  Citing  Hunt  v.  Johnson,  44  N.  Y.  27 ;  Hull  v.  Mitcheson,  64  N.  Y. 
639  ;  Hacket  v.  Potter,  135  Mass.  349,  350  ;  Murphy  v.  Collins,  121 
Mass.  6  ;  Ufford  v.  Spaulding,  156  Mass.  65,  69- 

4  Owings  v.  Hull,  9  Peters,  607 ;  Lamar  ».  Micou,  114  U.  S.  218 ; 
Fourth  Nat.  Bank  v.  Francklyn,  120  U.  S.  747,  751. 


EVIDENCE.  345 

regard  the  laws  of  other  States  as  matter  of  fact,  of 
which  they  will  not  take  judicial  notice,  and  which 
must  be  alleged  and  proved.1 

When  the  Supreme  Court  of  the  United  States  is 
exercising  appellate  jurisdiction,  whatever  was  regarded 
as  matter  of  fact  in  the  court  below  is  regarded  as  mat- 
ter of  fact  in  the  Supreme  Court ;  and  whatever  was 
regarded  as  matter  of  law  in  the  court  below  is  re- 
garded as  matter  of  law  in  the  Supreme  Court.  Hence, 
on  a  writ  of  error  to  a  state  court  in  which  the  law 
of  another  State  was  regarded  as  matter  of  fact,  the 
Supreme  Court  of  the  United  States  will  also  regard  it 
as  matter  of  fact,  and  will  not  take  judicial  notice  of  it.2 
But  if  the  state  court  has  taken  judicial  notice  of  the 
law  of  another  State,  the  United  States  Supreme  Court 
will  also  take  judicial  notice  of  it,  and  is  not  bound  by 
the  conclusion  reached  by  the  state  court.3 

1  Ante,  §  219. 

2  Hanley  v.  Donoghue,  116  U.  S.  1 ;  Chicago  &c.  Ry.  v.  Wiggins  Ferry- 
Co.,  119  U.  S.  615. 

«  Renaud  v.  Abbott,  116  U.  S.  277. 


CHAPTER  XVII. 


PLEADING    AND    PRACTICE. 


Section 

221.  Omission  to    allege   name   of 

superintendent,  or  other  per- 
son causing  injury. 

222.  Undue  particularity.     Allega- 

tion that  employer  knew  of 
defect. 

223.  Allegation  of  "  due  "  notice. 

224.  Plea    of    contributory    negli- 

gence, and  waiver  thereof. 

225.  General  issue  admits  capacity 

in   which    plaintiff    sues    or 
defendant  is  sued. 

226.  Election    between      statutory 

counts  and  joinder  thereof. 

227.  Election    between    counts    at 

common  law  and  under  the 
statute,  and  joinder  thereof. 

228.  Joinder  of  separate  causes  of 

action  in  one  count. 

229.  "  Reporting "  case  upon  non- 

suit. 

230.  Variance  between  declaration 

and  proof. 

231.  Nonsuit  no  bar  to  new  action. 

232.  Power  of  Supreme   Court  to 

render  such  judgment  as  the 


Section 

trial  court  should  have  ren- 
dered. 

233.  New    trial    when    verdict    is 

against  the  evidence. 

234.  Restricting  new  trial  to  cer- 

tain issues. 

235.  Setting  aside  verdict  by  trial 

court.     Number  of  times  al- 
lowable. 

236.  Insurance    against    accidents. 

Argument  of  counsel. 

237.  Allowance       of       exceptions. 

Amendment   after  time  for 
filing  original  bill. 

238.  Same.  Proving  truth  of  excep- 

tions. 

239.  Whether  motion  to  nonsuit  or 

direct  verdict  need  state  par- 
ticulars. 

240.  "  Due  care "    should    be    ex- 

plained to  jury. 

241.  Trial  judge's  decision  that  wit- 

ness is  an  expert :  when  open 
to  revision. 

242.  Reasonableness   of  employer's 

rules  is  a  question  of  law  for 
the  court. 


§  221.  Omission  to  allege  Name  of  Superintendent, 

or  Other  Person  causing  Injury. 
IN  Alabama  it  has  been  strongly  intimated,  though 
not  expressly  decided,  that,  in  an  action  under  the  stat- 


PLEADING   AND   PRACTICE.  347 

ute  counting  on  the  negligence  of  a  person  to  whose 
orders  the  plaintiff  was  bound  to  conform  and  did  con- 
form to  his  injury,  good  pleading  requires  the  name  of 
such  person  to  be  alleged  in  the  complaint,  so  as  to  give 
the  defendant  notice  thereof,  and  to  present  an  issuable 
fact  whether  such  person  was  in  the  employ  of  defend- 
ant, or  whether  the  plaintiff  was  bound  to  conform  to 
his  orders.1  A  failure  to  allege  the  name  of  such  per- 
son can  be  taken  advantage  of  by  special  demurrer 
only,  if  at  all,  and  it  is  cured  by  verdict.2 

In  a  complaint  under  the  act  counting  on  the  negli- 
gence of  a  person  entrusted  with  the  duty  of  seeing 
that  the  ways,  works,  machinery,  or  plant  of  the  defend- 
ant were  in  proper  condition,  it  has  been  decided,  how- 
ever, that  an  omission  to  state  the  name  of  such  person 
is  not  demurrable.  "  The  duty  itself  being  one  which 
rests  on  the  master,  at  least  to  the  extent  of  committing 
it  to  a  competent  employee,  he  is  supposed  to  know, 
and  generally  no  doubt  does  know,  the  identity  of  the 
person  to  whom  it  is  committed.  There  is,  therefore, 
no  hardship,  and  no  departure  from  cardinal  rules  of 
pleading,  in  exempting  the  plaintiff  from  the  averment 
of  the  name  of  such  person  in  actions  like  this." : 

§  222.   Undue  Particularity.     Allegation  that  Em- 
ployer knew  of  Defect. 

Under  the  Alabama  Employers'  Liability  Act  it  is 
not  necessary  for  the  plaintiff  to  allege  or  prove  that 

1  McNamara  v.  Logan,  100  Ala.  187,  194. 
3  Mobile  &c.  Ry.  v.  George,  94  Ala.  199,  214,  215. 
8  McNamara  v.  Logan,  100  Ala.  187,  194,  per  McClellan,  J.,  for  the 
court. 


348  EMPLOYEES'  LIABILITY  ACTS. 

the  employer  had  knowledge  of  the  defect  before  the 
injury  was  received.1 

In  Louisville  &c.  Ry.  v.  Coulton,  86  Ala.  129,  a 
brakeman  was  injured  by  a  defective  brake.  The  com- 
plaint alleged  that  the  injury  "  was  caused  by  the  neg- 
ligence of  defendant  in  failing  to  provide  good  and 
safe  brakes  and  appliances  connected  therewith,  and  by 
the  defendant's  negligently  and  carelessly  omitting  to 
keep  its  brakes  on  said  train  in  good  repair,  and  know- 
ingly allowing  the  same  to  remain  out  of  repair."  At 
the  trial  the  plaintiff  failed  to  prove  that  the  defendant 
had  knowledge  of  the  defect,  and  the  defendant  con- 
tended that  as  the  plaintiff  had  stated  his  case  with 
unnecessary  particularity,  he  was  obliged  to  prove  it  as 
alleged.  But  the  court  held  that  this  was  not  matter 
of  description  within  the  meaning  of  the  rule,  and  that 
the  plaintiff  could  recover  without  proof  of  such  know- 
ledge. 

§  223.  Allegation  of  "  Due  "  Notice. 
It  is  not  necessary  that  the  declaration  should  state 
the  time  when  notice  of  the  time,  place,  and  cause  of 
the  injury  was  given.  An  allegation  that  the  plaintiff 
gave  "  due  "  notice  of  those  facts,  or  that  he  "  duly  " 
gave  such  notice  is  sufficient.2 

§  224.  Plea  of  Contributory  Negligence,  and  Waiver 

thereof. 

Under  the  Alabama  practice  the  defence  of  contribu- 
tory negligence  is  not  available  under  the  general  issue, 

1  Louisville  &c.  Ry.  v.  Coulton,  86  Ala.  129. 

2  Steffe  v.  Old  Colony  Ry.,  156  Mass.  262. 


PLEADING  AND  PRACTICE.          349 

or  plea  of  not  guilty,  but  must  be  specially  pleaded;  and 
whenever  the  introduction  of  such  evidence  under  the 
general  issue  is  objected  to,  the  objection  should  be 
sustained  and  the  evidence  excluded.1  But  this  is  an 
objection  which  may  be  waived  by  the  plaintiff,  and 
when  the  record  shows  that  both  parties  tried  the  case 
as  if  a  special  plea  had  been  set  up,  although  the  record 
shows  no  other  plea  than  the  general  issue,  this  will 
constitute  a  waiver  of  the  objection.2 

In  Massachusetts,  however,  the  rule  is  well  settled 
that  contributory  negligence  or  want  of  due  care  on 
the  part  of  the  plaintiff  may  be  shown  under  the  gen- 
eral issue,  without  a  special  plea.3 

§  225.  General  Issue  admits  Capacity  in  which  Plain- 
tiff sues  or  Defendant  is  sued. 

Under  the  Alabama  practice,  when  a  plaintiff  sues  as 
administrator  of  a  deceased  employee,  his  capacity  to 
sue  is  admitted  by  pleading  the  general  issue,  and  can 
only  be  put  in  issue  by  a  plea  of  ne  unques  adminis- 
trator. "  The  general  issue  in  no  case  puts  in  issue 
any  fact  the  burden  of  proving  which  primarily  is  not 
upon  the  plaintiff."  Hence,  when  a  plaintiff  sues  in 
his  representative  capacity  under  the  Employers'  Liabil- 
ity Act,  and  the  defendant  pleads  the  general  issue,  the 
plaintiff  need  offer  no  proof  of  his  appointment,  as  it 
is  admitted  by  the  plea.4  The  general  issue  also  admits 

1  Kansas  City  &c.  Ry.  v.  Crocker,  95  Ala.  412  (overruling  Government 
Street  Ry.  v.  Hanlon,  53  Ala.  70). 

2  Richmond  &c.  Ry.  v.  Farmer,  97  Ala.  141  ;  Louisville  &c.  Ry.  v. 
Mothershed,  97  Ala.  261. 

«  Steele  v.  Burkhardt,  104  Mass.  59,  62. 

4  Louisville  &c.  Ry.  v.  Trammell,  93  Ala.  350. 


350  EMPLOYERS'  LIABILITY  ACTS. 

the  capacity  in  which  the  defendant  is  sued,  as  that  it  is 
a  corporation.1 

A  like  rule  prevails  in  Massachusetts  under  a  statute 
providing  that  — 

"  When  it  appears  from  the  papers  or  pleadings  in  a 
suit  at  law  or  in  equity  that  any  party  sues  or  is  sued 
as  executor,  administrator,  guardian,  trustee,  or  assignee, 
or  as  a  corporation,  such  fact  shall  be  taken  as  admitted 
unless  the  party  controverting  the  same  files  in  court, 
within  ten  days  from  the  time  allowed  for  answer,  a 
special  demand  for  proof  of  such  fact.' 


"  2 


§  226.  Election  between  Statutory  Counts  and  Joinder 

thereof. 

The  early  cases  under  the  Massachusetts  act  hold 
that  if  the  declaration  contains  two  or  more  counts 
under  different  clauses  of  the  statute,  and  there  is  no 
evidence  at  the  trial  to  support  one  of  them,  the  plain- 
tiff may  be  compelled  to  elect  which  count  he  will 
stand  upon ;  and  if  he  elects  to  drop  the  count  which 
is  unsupported  by  evidence,  he  is  not  aggrieved  by  the 
ruling  to  elect.3  But  the  later  and  better  practice  is, 
not  to  compel  the  plaintiff  to  elect  upon  which  count 
he  will  proceed.  The  reasons  for  this  rule  are  thus 
stated  by  Mr.  Chief  Justice  Field,  speaking  for  the 
court  in  the  recent  case  of  Beauregard  v.  Webb  Granite 
Co.,  160  Mass.  201,  202:  — 

"  The  clauses  in  the  first  section  of  the  statute  state 
the  separate  grounds  on  which  a  defendant  may  be 

1  Zealy  v.  Birmingham  Ry.,  99  Ala.  579. 

2  Mass.  Pub.  Sts.  ch.  167,  §  87. 

8  Conroy  v.-  Clinton,  158  Mass.  318. 


PLEADING  AND   PRACTICE.  351 

liable.  The  evidence  in  any  particular  case  may  make 
it  uncertain  on  which  ground  the  liability  of  the  de- 
fendant depends,  if  there  is  any  liability ;  therefore  a 
plaintiff  ought  to  be  permitted  to  allege  all  the  grounds 
of  liability  which  there  is  any  evidence  to  support,  and 
these  we  think  may  properly  be  alleged  separately  in 
separate  counts.  Whether  they  can  all  be  aUeged  con- 
junctively in  one  count,  it  is  unnecessary  now  to  decide. 
The  whole  liability  of  the  defendant  for  the  death  [or 
injury]  of  an  employee  ought  to  be  tried  in  one  action, 
and  judgment  in  that  action  ought  to  be  a  bar  to  any 
subsequent  action  between  the  same  parties  for  the 
same  cause  of  action." 

It  was  accordingly  held  that  two  counts  under  dif- 
ferent clauses  of  the  statute  are  not  inconsistent  in  the 
legal  sense,  for  "  they  only  state  separate  grounds  of 
liability  under  the  same  statute  for  the  same  ultimate 
act.  There  are  not  two  causes  of  action,  but  only  one, 
and  the  two  counts  state  the  different  legal  reasons 
why  under  the  statute  the  defendant  may  be  liable  in 
damages." 

If  there  is  no  evidence  to  support  one  of  the  counts, 
the  proper  practice  is  to  nonsuit  the  plaintiff  upon  that 
count,  or  to  direct  a  verdict  for  the  defendant  upon  it. 

A  like  rule  obtains  in  Alabama  under  its  Employers' 
Liability  Act.1  In  Highland  Avenue  &c.  Ry.  v.  Dusen- 
berry,  94  Ala.  413,  in  which  it  was  held  that  several 
distinct  causes  of  action  under  the  act  could  not  be 
joined  in  one  and  the  same  count,  Mr.  Justice  Walker, 
for  the  court,  says  on  page  418  :  "  It  is  quite  usual  in 
actions  for  torts,  where  a  single  act  or  transaction  is 

1  Louisville  &c.  Ry.  v.  Mothershed,  97  Ala.  261. 


352  EMPLOYERS'  LIABILITY  ACTS. 

complained  of  as  the  cause  of  the  alleged  injury,  to 
insert  several  counts  stating  that  act  in  varying  shapes, 
to  meet  different  phases  of  the  proof  as  it  may  be 
developed,  and  to  charge'  in  the  successive  counts  dif- 
ferent breaches  of  duty  as  separate  grounds  of  recovery. 
Each  count  is  treated  as  the  statement  of  a  distinct 
cause  of  action,  and  appropriate  issues  may  be  pleaded 
to  them  severally." 

§  227.  Election  between  Counts  at  Common  Law  and 
under  the  Statute,  and  Joinder  thereof. 

The  same  rule  ought  to  apply  to  this  case  as  to  that 
stated  in  the  preceding  section.2  As  decided  in  Beaure- 
gard  v.  Webb  Granite  Co.,  160  Mass.  201,  the  whole 
question  of  liability  for  personal  injury  caused  by  a 
single  act  should  be  tried  in  one  action,  and  settled 
once  for  all.  An  employer  should  not  be  harassed  by 
several  actions  for  the  same  injury,  nor  should  the 
employee  be  compelled  to  bring  several  actions,  and  to 
try  his  case  piecemeal.  If  there  is  no  evidence  to 
support  one  of  the  counts,  a  verdict  may  be  ordered 
for  the  defendant  upon  that  count,  or  the  plaintiff  may 
be  nonsuited  upon  it.  But  he  should  not  be  compelled 
to  elect  between  common  law  and  statutory  counts, 
unless  the  issues  are  so  different  and  complicated  as  to 
confuse  the  jury. 

In  some  cases,  where  the  plaintiff  was  ordered  to 
elect  between  such  counts  at  the  close  of  the  evidence, 
and  he  elected  to  drop  a  count  which  was  unsupported 
by  evidence,  it  was  held  that  the  plaintiff  was  not 

1  Citing  Maupay  v.  Holley,  3  Ala.  103. 

2  Ryalls  v.  Mechanics'  Mills,  150  Mass.  190,  196. 


PLEADING   AND   PRACTICE.  353 

aggrieved  by  the  ruling  to  elect,  and  could  not  obtain 
a  new  trial  on  that  ground.1  So,  if  the  issues  under 
the  two  counts  be  identical,  it  has  been  held  that  the 
plaintiff  cannot  except  to  such  a  ruling.2 

§  228.  Joinder  of  Separate  Causes  of  Action  in  One 

Count. 

In  an  action  under  the  Alabama  Employers'  Liability 
Act,  it  has  been  held  that  a  count  which  alleges  four 
separate  and  distinct  causes  of  action,  under  different 
clauses  of  the  act,  is  demurrer  for  improper  joinder  of 
causes  of  action,  and  that  a  verdict  and  judgment  for 
the  plaintiff  in  the  lower  court  will  be  reversed  for  that 
reason  by  the  Supreme  Court.3  Even  when  only  one 
cause  of  action  is  relied  upon  at  the  trial,  and  the  pre- 
siding justice  instructs  the  jury  that  no  recovery  can 
be  had  upon  the  others,  this  does  not  cure  the  error  in 
overruling  the  defendant's  demurrer.4 

§  229.  "  Reporting  "  Case  upon  Nonsuit. 
Under  the  Massachusetts  practice  it  is  not  strictly 
regular  for  the  trial  judge  to  report  the  case  for  the 
determination  of  the  full  court  after  ordering  a  non- 
suit;5 but  where  more  than  a  year  had  elapsed  after 
the  injury,  which  barred  a  new  action  under  §  3  of  the 
statute,  the  court  considered  the  question  of  law  raised 

1  May  v.  Whittier  Machine  Co.,  154  Mass.  29. 

2  Murray  v.  Knight,  156  Mass.  518  ;  Brady  v.  Ludlow  Manuf .  Co.,  154 
Mass.  468. 

8  Highland  Avenue  &c.  Ry.  v.  Dunsenberry,  94  Ala.  413. 

4  Richmond  &c.  Ry.  P.  Weems,  97  Ala.  270. 

6  Pub.  Sts.  ch.  153,  §  6  ;  Terry  ».  Brightman,  129  Mass.  535. 


354  EMPLOYERS'  LIABILITY  ACTS. 

upon  the  report  on  its  merits,  instead  of  dismissing  the 
report.1 

§  230.   Variance  between  Declaration  and  Proof. 

In  an  action  under  the  Massachusetts  Employers' 
Liability  Act  the  declaration  alleged  that  the  injury 
was  sustained  "  because  of  the  falling  in  of  the  roof  of 
said  tannery,"  and  further  alleged  that  "  the  condition 
of  said  tannery  and  the  roof  thereof  was  defective  and 
unsafe,  and  that  said  defective  and  unsafe  condition  of 
said  tannery  and  roof  had  not  been  discovered  and 
remedied  owing  to  the  negligence  of  the  defendants, 
and  of  the  person  in  the  service  of  the  defendants 
entrusted  by  them  with  the  duty  of  seeing  that  said 
tannery  and  roof  were  in  proper  condition."  The  proof 
was  that  the  chief  cause,  or  one  of  the  causes,  of  the 
fall  of  the  roof,  was  the  failure  to  remove  snow  which 
had  accumulated  upon  it.  It  was  held  that  evidence  of 
the  cause  of  the  roof's  falling  was  competent  under  the 
declaration,  and  that  there  was  no  variance.2 

In  an  action  under  the  Alabama  Employers'  Liability 
Act  it  was  held  that  an  allegation  that  the  plaintiff 
was  injured  by  reason  of  the  negligence  of  some  person 
in  the  defendant's  employ,  who  had  the  control  and 
superintendence  of  a  moving  car,  is  supported  by  proof 
that  the  injury  was  caused  by  the  negligence  of  an 
engineer  who  propelled  a  switching-car  with  too  great 
force.3 

Where  the  action  is  brought  jointly  against  two  rail- 

1  Shea  v.  Boston  &  Maine  Ry.,  154  Mass.  31,  33. 

2  Dolan  v.  Alley,  153  Mass.  380.     See,  also,  Whitman  v.  Groveland, 
131  Mass.  553. 

8  Louisville  &c.  Ry.  v.  Davis,  91  Ala.  487. 


PLEADING  AND  PRACTICE.          355 

road  companies,  by  a  man  who  was  employed  by  both 
companies  at  their  railroad  crossing,  proof  that  at  the 
time  of  the  injury,  caused  while  coupling  cars,  he  was 
acting  exclusively  for  only  one  of  the  railroads,  consti- 
tutes a  fatal  variance  under  the  Alabama  practice,  and 
prevents  a  recovery  against  either  defendant  under  the 
Employers'  Liability  Act.1 

§  231.  Nonsuit  no  Bar  to  New  Action. 

A  nonsuit  ordered  by  the  trial  court,  even  after 
hearing  all  the  evidence,  is  not  such  a  judgment  upon 
the  merits  as  will  bar  a  new  action  for  the  same  injury. 
The  plaintiff  may  still  bring  another  action  in  some 
other  jurisdiction  whose  rules  are  more  favorable  to  his 
recovery.  Thus,  the  plaintiff  may  sometimes  recover 
in  a  federal  court  sitting  either  within  the  State  whose 
court  ordered  the  nonsuit,  or  within  other  States.2 

§  232.  Power  of  Supreme  Court  to  render  such  Judg- 
ment as  the  Trial  Court  should  have  rendered. 
Under  section  7  of  the  Alabama  Acts  of  1888-89, 
page  797,  at  page  800,  when  a  case  has  been  tried  with- 
out a  jury  in  the  lower  court,  the  Supreme  Court  has 
the  power  to  "  render  such  judgment  in  the  cause  as 
the  court  below  should  have  rendered,  or  reverse  and 
remand  the  same  for  further  proceedings,  as  to  the 
Supreme  Court  shall  seem  right."  The  section  further 
provides  that  "  either  party  may,  by  bill  of  exceptions, 

1  Dean  v.  East  Tennessee  &c.  Ry.,  98  Ala.  586. 

2  Gardner  v.  Michigan  Central  Ry.,  150  U.  S.  349  ;  Bucher  v.  Cheshire 
Ry.,  125  U.  S.  555  ;  Manhattan  Ins.  Co.  v.  Broughton,  109  U.  S.  121  ; 
Honier  v.  Brown,  16  How.  354. 


356  EMPLOYERS'  LIABILITY  ACTS. 

also  present  on  appeal,  for  review,  the  conclusions  and 
judgments  of  the  [trial]  court  upon  the  evidence  ;  and 
the  Supreme  Court  shall  review  the  same  without  any 
presumption  in  favor  of  the  court  below  on  the  evi- 
dence." 

In  an  action  under  the  Employers'  Liability  Act  the 
Supreme  Court,  acting  under  the  above-quoted  statute, 
reduced  the  judgment  of  the  trial  court  from  $2,500  to 


§  233.  New  Trial  when  Verdict  is  against  the  Evi- 

dence. 

In  Massachusetts  and  some  other  States  the  judge 
who  presided  at  a  jury  trial  may  grant  a  new  trial 
when  he  considers  the  verdict  is  contrary  to  the  evi- 
dence, or  to  the  weight  of  evidence  ;  but  the  full  court 
cannot  grant  a  new  trial  on  either  of  those  grounds.2 
In  Alabama  and  some  other  States,  however,  the  full 
court,  in  reviewing  the  judgment  of  the  trial  court, 
has  the  power  to  grant  a  new  trial  on  either  of  these 
grounds.3  In  Alabama,  in  order  to  justify  the  full  court 
in  granting  a  new  trial  for  these  reasons,  the  prepon- 
derance of  evidence  against  the  verdict,  after  making 
all  reasonable  presumptions  in  its  favor,  must  be  so 
decided  as  to  clearly  convince  the  court  that  it  is  wrong 
and  unjust.4 

1  Louisville  &c.  Ry.  v.  Trammell,  93  Ala.  350. 

2  Forsyth  v.  Hooper,  11  Allen,  419  ;  Taylor  v.  Carew  Manuf.  Co.,  140 
Mass.  150,  151. 

8  Cobb  v.  Malone,  92  Ala.  630  ;  Hall  v.  Page,  4  Ga.  428  ;  Central 
Railroad  v.  Richards,  62  Ga.  306  ;  Hicks  v.  Stone,  13  Minn.  434. 

4  Mary  Lee  Coal  Co.  v.  Chambliss,  97  Ala.  171  ;  Western  Ry.  v. 
Mutch,  97  Ala.  194. 


PLEADING  AND  PRACTICE.          357 

§  234.  Restricting  New  Trial  to  Certain  Issues. 

In  Massachusetts  the  rule  is  well  settled  that  in  grant- 
ing a  new  trial  the  full  court  may,  under  certain  circum- 
stances, restrict  the  trial  to  specific  issues  and  eliminate 
therefrom  other  issues  which  were  tried  and  determined 
without  error  in  the  former  trial.1  A  like  rule  prevails 
in  granting  new  trials  in  actions  under  the  Employers' 
Liability  Act.  If  two  counts  under  the  act  be  joined 
in  one  declaration,  and  error  be  committed  at  the  trial 
respecting  one  count  but  none  respecting  the  other 
count,  the  new  trial  will  be  confined  to  the  former  and 
denied  as  to  the  latter  count ; 2  also  when  the  declara- 
tion contains  a  count  under  the  statute  and  another 
count  at  common  law.3 

§  235.  Setting  aside  Verdict  by  Trial  Court.     Num- 
ber of  Times  allowable. 

In  Massachusetts  it  is  held  that  there  is  no  limit  to 
the  number  of  times  that  the  presiding  justice  may  set 
aside  a  verdict  as  against  the  evidence  or  the  weight  of 
evidence.4  Nor  does  the  fact  that  the  judge  had  refused 
to  direct  a  verdict  for  the  defendant  at  the  trial  prevent 
him  from  subsequently  setting  it  aside  on  this  ground. 
Both  of  these  points  were  decided  in  Clark  v.  Jenkins, 
162  Mass.  397,  in  which  a  third  verdict  for  the  plaintiff, 
in  an  action  under  the  Employers'  Liability  Act,  was 

1  Merchants'  Ins.  Co.  v.  Abbott,  131  Mass.  397  ;  Patton  v.  Springfield, 
99  Mass.  627  ;  Kent  v.  Whitney,  9  Allen,  62. 

2  Bowers  v.  Connecticut  River  Ry.,  162  Mass.  312,  318. 

3  Bowers  v.  Connecticut  River  Ry.,  162  Mass.  312,  318. 

4  See,  also,  Wolbrecht  v.  Baumgarten,  26  111.  291. 


358  EMPLOYERS'  LIABILITY  ACTS. 

set  aside  by  the  trial  court,  and  the  ruling  sustained  by 
the  Supreme  Court. 

§  236.  Insurance  against  Accidents.     Argument  of 
Counsel. 

The  fact  that  an  employer  is  insured  against  acci- 
dents to  his  employees  is  not  a  subject  for  legitimate 
argument  to  the  jury  by  the  plaintiff's  counsel.  In 
Tremblay  v.  Harnden,  162  Mass.  383,  the  defendant 
having  admitted  that  he  was  insured  against  such  inju- 
ries, the  plaintiff's  counsel  claimed  the  right  to  argue 
to  the  jury  that  this  fact  rendered  the  defendant  less 
likely  to  be  careful  in  respect  to  his  machinery.  It  was 
held  that  the  presiding  justice  rightly  refused  to  permit 
this  line  of  argument. 

§  237.  Allowance  of  Exceptions.     Amendment  after 
Time  for  Filing  Original  Bill. 

A  bill  of  exceptions  filed  in  court  within  the  time 
allowed  by  law  may  be  amended  after  that  time  has 
expired,  with  the  consent  of  the  excepting  party,  but 
not  without  his  consent.  The  question  of  allowing 
such  amendment,  however,  rests  in  the  discretion  of  the 
presiding  judge.1  The  facts  in  the  case  cited  did  not 
involve  the  question  whether  a  distinct  exception  taken 
at  the  trial  and  omitted  from  the  original  draft  by  acci- 
dent or  mistake  can  be  added  by  amendment  after  the 
time  has  expired  for  filing  exceptions.  On  page  561 
this  question  was  expressly  reserved  for  future  consider- 
ation. 

1  Hector  v.  Boston  Electric  Light  Co.,  161  Mass.  558. 


PLEADING   AND   PRACTICE.  359 

§  238.  Same.  Proving  Truth  of  Exceptions. 
An  excepting  party  has  the  right,  if  he  chooses,  to 
stand  upon  his  exceptions  as  originally  filed,  and  he 
cannot  be  forced  to  accept  an  amendment.  If  the  pre- 
siding judge  will  not  allow  them,  the  excepting  party 
may  prove  their  truth,  and  thus  secure  a  hearing  before 
the  full  court.1  As  to  the  extent  to  which  errors  in 
such  exceptions  may  be  corrected  on  a  petition  to  prove 
the  truth  of  the  exceptions  filed,  see  Morse  v.  Wood- 
worth,  155  Mass.  233. 

§  239.    Whether  Motion  to  nonsuit  or  direct  Verdict 

need  state  Particulars. 

A  motion  for  a  nonsuit  at  the  close  of  the  evidence, 
based  on  the  ground  that  no  negligence  of  the  defend- 
ant had  been  shown,  in  an  action  by  an  employee  against 
an  employer,  is  a  proper  way  to  raise  the  question ;  and 
it  is  not  necessary  to  state  the  particulars  in  the  motion, 
in  order  to  enable  the  defendant  to  avail  himself  of  the 
point  in  a  higher  court.2  In  Massachusetts  the  usual 
form  of  motion  is  that  upon  all  the  evidence  the  plain- 
tiff cannot  recover.  In  Alabama,  if  the  jury  believe 
the  evidence  their  verdict  should  be  for  the  defendant. 
If  this  motion  be  refused  by  the  presiding  justice,  and 
a  verdict  be  returned  for  the  plaintiff,  all  grounds  are 
open  to  the  defendant  in  a  higher  court.3 

In  England,  however,  under  the  County  Court  Act 
of  1888  (51  &  52  Viet.  cap.  43,  §  120),  there  is  no  right 

1  Hector  v.  Boston  Electric  Light  Co.,  161  Mass.  568,  560. 

2  Byrnes  v.  New  York  &c.  Ry.,  113  N.  Y.  251. 
«  O'Neil  i?.  O'Leary,  164  Mass.  387. 


360  EMPLOYERS'  LIABILITY  ACTS. 

of  appeal  from  a  county  court  except  upon  such  ques- 
tions of  law  as  were  raised  and  submitted  to  the  county 
court  judge  at  the  trial.  This  statute  has  been  quite 
strictly  construed  against  the  right  of  appeal.1  In  a 
recent  case  under  the  Employers'  Liability  Act  it  was 
decided  by  the  House  of  Lords  that,  where  the  defend- 
ant at  the  trial  in  the  county  court  relied  merely  upon 
the  point  that  the  plaintiff  had  assumed  the  risk  of 
injury  as  a  ground  for  a  nonsuit,  the  point  that  there 
was  no  evidence  of  defendant's  negligence  to  go  to  the 
jury  was  not  open  to  the  defendant  on  appeal.2 

§  240.  "  Due  Care  "  should  be  explained  to  Jury. 

In  an  action  under  the  Massachusetts  act,  where  one 
of  the  defences  relied  upon  is  that  the  plaintiff  was  not 
in  the  exercise  of  due  care  at  the  time  of  the  injury,  the 
plaintiff  is  entitled  to  a  ruling  that  due  care  consists  in 
the  same  care  which  people  of  ordinary  prudence  would 
exercise  under  like  circumstances;  and  an  exception 
will  lie  to  a  ruling  that  the  plaintiff  must  have  been  in 
the  exercise  of  "  due  care,"  or  "  proper  care."  without 
explanation  of  those  terms.3 

§  241.    Trial  Judge's  Decision  that  Witness  is  an 

Expert :  when  open  to  Revision. 

If  the  presiding  judge  decides  that  a  witness  offered 

as  an  expert  is  competent,  the  full  court  cannot  revise 

this  finding  of  fact,  unless  all  the  material   evidence 

bearing  upon  the  question  is  set  forth  in  the  bill  of 

1  Clarkson  v.  Musgrave,  9  Q.  B.  D.  386. 

2  Smith  v.  Baker,  [1891]  A.  C.  325. 
8  Brick  v.  Bosworth,  162  Mass.  334. 


PLEADING  AND  PRACTICE.          361 

exceptions  or  other  record.  Where  it  merely  appears 
that  he  was  an  engineer,  and  that  he  was  allowed  to 
state  that  in  his  opinion  a  staging  constructed  in  a  par- 
ticular mode  would  not  bear  a  certain  weight,  the  full 
court  held  that  the  question  whether  he  was  an  expert 
was  not  open.1 

In  Alabama  the  rule  seems  to  be  less  strict  in  this 
respect.2 

§  242.  Reasonableness    of  Employer's    Rules    is    a 
Question  of  Law  for  the  Court. 

In  an  action  under  the  Alabama  Employers'  Liability 
Act  it  has  been  held  that  the  question,  whether  or  not 
a  rule  adopted  by  an  employer  for  governing  the  con- 
duct of  his  employees  is  reasonable,  is  a  question  of  law 
for  the  presiding  judge  to  decide,  and  should  not  be 
submitted  to  the  jury.3 

1  Prendible  »:  Connecticut  River  Manuf.  Co.,  160  Mass.  131  ;  Campbell 
v.  Russell,  139  Mass.  278  ;  Perkins  v.  Stickney,  132  Mass.  217. 

2  Alabama  Coal  Co.  v.  Pitts,  98  Ala.  285  ;  Mobile  &c.  Ry.  v.  George, 
94  Ala.  199. 

3  Memphis  &c.  Ry.  v.  Graham,  94  Ala.  545. 


APPENDIX. 

I.   English  Employers'  Liability  Act  of  1880. 
II.    Alabama  Employers'  Liability  Act  of  1885. 

III.  Massachusetts  Employers'  Liability  Act  of  1887- 

IV.  Colorado  Employers'  Liability  Act  of  1893. 
V.   Indiana  Employers'  Liability  Act  of  1893. 


I. 

ENGLISH  EMPLOYERS'  LIABILITY  ACT  OF  1880. 
(43  &  44  Viet.  cap.  42.) 

AN  ACT  to  extend  and  regulate  the  Liability  of  Employers  to  make 
Compensation  for  Personal  Injuries  suffered  by  Workmen  in 
their  Service.  [7th  September,  1880.]- 

Be  it  enacted  by  the  Queen's  most  Excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal, 
and  Commons,  in  this  present  Parliament  assembled,  and  by  the 
authority  of  the  same,  as  follows  :  — 

1.  Where,  after  the  commencement  of  this  Act,  personal   Amend- 

.     .  .  ,  i  mentof 

injury  is  caused  to  a  workman  law. 

(1)  By   reason   of   any  defect  in  the  condition  of  the  ways, 

works,  machinery,  or  plant  connected  with  or  used  in  the 
business  of  the  employer  ;  or 

(2)  By  reason  of  the  negligence  of  any  person  in  the  service  of 

the  employer  who  has  any  superintendence  entrusted  to 
him  whilst  in  the  exercise  of  such  superintendence ;  or 

(3)  By  reason  of  the  negligence  of  any  person  in  the  service 

of  the  employer  to  whose  orders  or  directions  the  work- 
man at  the  time  of  the  injury  was  bound  to  conform, 
and  did  conform,  where  such  injury  resulted  from  his 
having  so  conformed  ;  or 

(4)  By  reason  of  the  act  or  omission  of  any  person  in  the 

service  of  the  employer  done  or  made  in  obedience  to  the 
rules  or  by-laws  of  the  employer,  or  in  obedience  to 
particular  instructions  given  by  any  person  delegated  with 
the  authority  of  the  employer  in  that  behalf  ;  or 


364  APPENDIX. 

(5)  By  reason  of  the  negligence  of  any  person  in  the  service  of 
the  employer  who  has  the  charge  or  control  of  any  sig- 
nal, points,  locomotive  engine,  or  train  upon  a  railway, 
the   workman,   or,  in   case  the  injury  results   in   death,  the  legal 
personal  representatives  of  the  workman,  and  any  persons  entitled 
in  case  of  death,  shall   have  the  same  right  of  compensation  and 
remedies  against  the  employer  as  if  the  workman  had  not  been  a 
workman  of  nor  in  the  service  .of  the  employer,  nor  engaged  in  his 
work. 

Exceptions  2.  A  workman  shall  not  be  entitled  under  this  Act  to 
menTof d  any  right  of  compensation  or  remedy  against  the  employer 
}aw-  in  any  of  the  following  cases ;  that  is  to  say, 

(1)  Under  sub-section  one  of  section  one,   unless  the   defect 

therein  mentioned  arose  from,  or  had  not  been  discovered 
or  remedied  owing  to,  the  negligence  of  the  employer, 
or  of  some  person  in  the  service  of  the  employer,  and 
entrusted  by  him  with  the  duty  of  seeing  that  the  ways, 
works,  machinery,  or  plant  were  in  proper  condition. 

(2)  Under  sub-section   four  of   section  one,  unless  the  injury 

resulted  from  some  impropriety  or  defect  in  the  rules, 
by-laws,  or  instructions  therein  mentioned  ;  provided  that 
where  a  rule  or  by-law  has  been  approved  or  has  been 
accepted  as  a  proper  rule  or  by-law  by  one  of  Her 
Majesty's  Principal  Secretaries  of  State,  or  by  the  Board 
of  Trade  or  any  other  department  of  the  Government, 
under  or  by  virtue  of  any  Act  of  Parliament,  it  shall  not 
be  deemed  for  the  purposes  of  this  Act  to  be  an  improper 
or  defective  rule  or  by-law. 

(3)  In   any  case  where  the  workman  knew  of  the  defect  or 

negligence  which  caused  his  injury,  and  failed  within  a 
reasonable  time  to  give,  or  cause  to  be  given,  informa- 
tion thereof  to,  the  employer  or  some  person  superior  to 
himself  in  the  service  of  the  employer,  unless  he  was 
aware  that  the  employer  or  such  superior  already  knew 
of  the  said  defect  or  negligence. 

3.  The  amount  of  compensation  recoverable  under  this  Act  shall 
not  exceed  such  sum  as  may  be  found  to  be  equivalent  to 

Limit  of  .      .  i  T 

sum  re-        the  estimated  earnings,  during  the  three  years  preceding 

coverable          .       .    .  ,  .        .  ,  i          i    i      • 

as  compen-  the  injury,  of  a  person  in  the  same  grade  employed  during 
those  years  in  the  like   employment,  and  in  the  district 
in  which  the  workman  is  employed  at  the  time  of  the  injury. 


APPENDIX.  365 

4.  An  action  for  the  recovery  under  this  Act  of  compensation  for 
an    injury  shall  not  be  maintainable  unless    notice    that   , 

.  .  .         .  ...  Limit  of 

injury  has  been  sustained  is  given  within  six  weeks,  and  time  for 

,..  1-1  .          .  IP  -i         recovery  of 

the  action  is  commenced  within  six  months,  from  the  compenaa- 
occurrence  of  the  accident  causing  the  injury,  or,  in  case 
of  death,  within  twelve  months  from  the  time  of  death :  provided 
always,  that  in  case  of  death  the  want  of  such  notice  shall  be  no 
bar  to  the  maintenance  of  such  action  if  the  judge  shall  be  of  opinion 
that  there  was  reasonable  excuse  for  such  want  of  notice. 

5.  There  shall  be  deducted  from  any  compensation  awarded  to 
any  workman,  or  representatives  of  a  workman,  or  persons   Money  pay- 
claiming  by,  under,  or  through  a  workman,  in  respect  of 

any  cause  of  action  arising  under  this  Act,  any  penalty  or 

part  of  a  penalty  which  may  have  been  -paid  in  pursuance   from  com- 

r  J  J  r  pensation 

of  any  other  Act  of  Parliament  to  such  workman,  repre-  under  Act. 
sentatives,  or  persons  in  respect  of  the  same  cause  of  action ;  and 
where  an  action  has  been  brought  under  this  Act  by  any  workman, 
or  the  representatives  of  any  workman,  or  any  persons  claiming 
by,  under,  or  through  such  workman,  for  compensation  in  respect 
of  any  cause  of  action  arising  under  this  Act,  and  payment  has  not 
previously  been  made  of  any  penalty  or  part  of  a  penalty  under 
any  other  Act  of  Parliament  in  respect  of  the  same  cause  of  action, 
such  workman,  representatives,  or  person  shall  not  be  entitled 
thereafter  to  receive  any  penalty  or  part  of  a  penalty  under  any 
other  Act  of  Parliament  in  respect  of  the  same  cause  of  action. 

6.  (1)  Every  action   for   recovery  of   compensation   under   this 

Act   shall   be  brought  in  a  county  court,  but  Trialof 
may,  upon  the  application  of  either  plaintiff  or  a**1008- 
defendant,  be  removed  into  a  superior  court  in  like  man- 
ner and  upon  the   same   conditions    as  an  action   com- 
menced in  a  county  court  may  by  law  be  removed. 

(2)  Upon  the  trial  of  any  such  action  in  a  county  court  before 

the  judge  without  a  jury,  one  or  more  assessors  may  be 
appointed  for  the  purpose  of  ascertaining  the  amount  of 
compensation. 

(3)  For  the  purpose  of  regulating  the  conditions  and  mode  of 

appointment  and  remuneration  of  such  assessors,  and  all 
matters  of  procedure  relating  to  their  duties,  and  also  for 
the  purpose  of  consolidating  any  actions  under  this  Act 
in  a  county  court,  and  otherwise  preventing  multiplicity 
of  such  actions,  rules  and  regulations  may  be  made, 


366  APPENDIX. 

varied,  and  repealed  from  time  to  time  in  the  same  man- 
ner as  rules  and  regulations  for  regulating  the  practice 
and  procedure  in  other  actions  in  county  courts. 

"  County  court "  shall,  with  respect  to  Scotland,  mean 
the  "  Sheriff's  Court,"  and  shall,  with  respect  to  Ireland, 
mean  the  "  Civil  Bill  Court." 

In  Scotland  any  action  under  this  Act  may  be  removed 
to  the  Court  of  Session  at  the  instance  of  either  party,  in 
Viet.  cap.         the  manner  provided  hy,   and  subject  to  the  conditions 
prescribed  by,  section  nine  of  the  Sheriff  Courts  (Scot- 
land) Act,  1877. 

In  Scotland  the  sheriff  may  conjoin  actions  arising  out 
of  the  same  occurrence  or  cause  of  action,  though  at  the 
instance  of  different  parties  and  in  respect  of  different 
injuries. 

7.  Notice  in  respect  of  an  injury  under  this  Act  shall  give  the 
Mode  of  name  and  address  of  the  person  injured,  and  shall  state  in 
tfce  ofgin-°~  or(lmary  language  the  cause  of  the  injury  and  the  date  at 
jury.  which  it  was  sustained,  and  shall  be  served  on  the  em- 

ployer, or,  if  there  is  more  than  one  employer,  upon  one  of  such 
employers. 

The  notice  may  be  served  by  delivering  the  same  to,  or  at  the  resi- 
dence or  place  of  business  of,  the  person  on  whom  it  is  to  be  served. 
The  notice  may  also  be  served  by  post  by  a  registered  letter 
addressed  to  the  person  on  whom  it  is  to  be  served  at  his  last  known 
place  of  residence  or  place  of  business  ;  and,  if  served  by  post,  shall 
be  deemed  to  have  been  served  at  the  time  when  a  letter  containing 
the  same  would  be  delivered  in  the  ordinary  course  of  post ;  and,  in 
proving  the  service  of  such  notice,  it  shall  be  sufficient  to  prove 
that  the  notice  was  properly  addressed  and  registered. 

Where  the  employer  is  a  body  of  persons  corporate  or  unin- 
corporate,  the  notice  shall  be  served  by  delivering  the  same  at  or 
by  sending  it  by  post  in  a  registered  letter  addressed  to  the  office, 
or,  if  there  be  more  than  one  office,  any  one  of  the  offices  of  such 
body. 

A  notice  under  this  section  shall  not  be  deemed  invalid  by  reason 
of  any  defect  or  inaccuracy  therein,  unless  the  judge  who  tries  the 
action  arising  from  the  injury  mentioned  in  the  notice  shall  be  of 
opinion  that  the  defendant  in  the  action  is  prejudiced  in  his  defence 
by  such  defect  or  inaccuracy,  and  that  the  defect  or  inaccuracy  was 
for  the  purpose  of  misleading. 


APPENDIX.  367 

8.  For  the  purposes  of  this  Act,  unless  the  context  otherwise 
requires,  — 

The  expression,  "person  who  has   superintendence   entrusted  to 
him,"  means  a  person  whose  sole  or  principal  duty  is  that   Defau. 
of  superintendence,  and  who  is  not  ordinarily  engaged  in   tlons< 
manual  labor : 

The  expression  "  employer  "  includes  a  body  of  persons  corporate 
or  unincorporate : 

The   expression   "  workman "  means  a  railway  servant  and  any 
person  to  whom  the  Employers  and  Workmen  Act,  1875,   38  &  39 

v  Viet.  cap. 

applies.  90. 

9.  This  Act  shall  not   come   into  operation  until  the  first  day 
of   January  one  thousand  eight  hundred  and  eighty-one,  Commence- 
which   date  is  in  this  Act  referred  to  as  the  commence-  Act! 
ment  of  this  Act.1 

10.  This  Act  may  be  cited  as  the  Employers'  Liability  Act,  1880, 
and  shall  continue  in  force  till  the  thirty-first  day  of  De- 

/    .   ,  *  Short  title. 

cember  one  thousand  eight  hundred  and  eighty-seven,  and 
to  the  end  of  the  then  next  session  of  Parliament,  and  no  longer, 
unless  Parliament  shall  otherwise  determine,  and  all  actions  com- 
menced under  this  Act  before  that  period  shall  be  continued  as  if 
the  said  Act  had  not  expired.2 


II. 

ALABAMA  EMPLOYERS'   LIABILITY  ACT  OF  1885. 
(Code  of  1886,  §§  2590,  2591,  2592.) 

§  2590.  Liability  of  Master  or  Employer  to  Servant  or  Employee 
for  Injuries. 

When  a  personal  injury  is  received  by  a  servant  or  employee  in 
the  service  or  business  of  the  master  or  employer,  the  master  or 

1  This  section,  9,  is  repealed  by  57  &  58  Viet.  cap.  56,  Statute  Law 
Revision  Act,  1894. 

2  The  Employers'  Liability  Act,  1880,  was  continued  in  force  until 
December  31,  1889,  by  51  &  52  Viet.  cap.  58,  and  has  been  continued 
annually  since  then  by  the  Expiring  Laws  Continuance  Act. 

The  following  English  Colonies  have  also  enacted  Employers'  Liability 
Acts  :  Ontario  :  49  Viet.  cap.  28  ;  Victoria  :  50  Viet.  No.  894  ;  Queens- 
land :  50  Viet.  No.  24 ;  New  Zealand :  46  Viet.  No.  20  ;  New  South 
Wales  :  46  Viet.  No.  6. 


368  APPENDIX. 

employer  is  liable  to  answer  in  damages  to  such  servant  or  em- 
ployee as  if  he  were  a  stranger,  and  not  engaged  in  such  service  or 
employment  in  the  cases  following  :  — 

1.  When  the  injury  is  caused  by  reason  of  any  defect  in  the  con- 
dition of  the  ways,  works,  machinery,  or  plant  connected  with  or 
used  in  the  business  of  the  master  or  employer. 

2.  When  the  injury  is  caused  by  reason  of  the  negligence  of  any 
person  in  the  service  or  employment  of  the  master  or  employer  who 
has  any  superintendence  intrusted  to  him  whilst  in  the  exercise  of 
such  superintendence. 

3.  When  such  injury  is  caused  by  reason  of  the  negligence  of  any 
person  in  the  service  or  employment  of  the  master  or  employer,  to 
whose  orders  or  directions  the  servant  or  employee,  at  the  time  of 
the  injury,  was  bound  to  conform,  and  did  conform,  if  such  injuries 
resulted  from  his  having  so  conformed. 

4.  When  such  injury  is  caused  by  reason  of  the  act  or  omission 
of  any  person  in  the  service  or  employment  of  the  master  or  em- 
ployer, done  or  made  in  obedience  to  the  rules  and  regulations  or 
by-laws   of  the  master  or  employer,  or  in  obedience  to  particular 
instructions  given  by  any  person  delegated  with  the  authority  of  the 
master  or  employer  in  that  behalf. 

5.  When  such  injury  is  caused  by  reason  of  the  negligence  of  any 
person  in  the  service  or  employment  of  the  master  or  employer,  who 
has  the  charge  or  control  of  any  signal,  points,  locomotive,  engine, 
switch,  car,  or  train  upon  a  railway,  or  of  any  part  of  the  track  of  a 
railway. 

But  the  master  or  employer  is  not  liable  under  this  section  if 
the  servant  or  employee  knew  of  the  defect  or  negligence  causing 
the  injury,  and  failed  in  a  reasonable  time  to  give  information 
thereof  to  the  master  or  employer,  or  to  some  person  superior  to 
himself  engaged  in  the  service  or  employment  of  the  master  or 
employer,  unless  he  was  aware  that  the  master  or  employer,  or  such 
superior,  already  knew  of  such  defect  or  negligence ;  nor  is  the 
master  or  employer  liable  under  subdivision  one,  unless  the  defect 
therein  mentioned  arose  from,  or  had  not  been  discovered  or  reme- 
died owing  to,  the  negligence  of  the  master  or  employer,  or  of  some 
person  in  the  service  of  the  master  or  employer,  and  intrusted  by 
him  with  the  duty  of  seeing  that  the  ways,  works,  machinery,  or 
plant  were  in  proper  condition. 


APPENDIX.  369 

§  2591.  Personal  Representative  may  sue,  if  Injury  results  in 

Death. 

If  such  injury  results  in  the  death  of  the  servant  or  employee,  his 
personal  representative  is  entitled  to  maintain  an  action  therefor, 
and  the  damages  recovered  are  not  subject  to  the  payment  of  debts 
or  liabilities,  but  shall  be  distributed  according  to  the  statute  of 
distributions. 

§  2592.  Damages  Exempt. 

Damages  recovered  by  the  servant  or  employee,  of  and  from  the 
master  or  employer,  are  not  subject  to  the  payment  of  debts  or  any 
legal  liabilities  incurred  by  him. 


III. 

MASSACHUSETTS  EMPLOYEES'  LIABILITY  ACT  OF  1887,  WITH 
AMENDMENTS  TO  JANUARY  1,  1896. 

(Statute  1887,  ch,  270.) 

AN  ACT  to  extend  and  regulate  the  liability  of  employers  to  make 
compensation  for  personal  injuries  suffered  by  employees  in 
their  service. 

Be  it  enacted,  etc.,  as  follows  :  — 

Section  1.    Where,  after  the  passage  of  this  Act,  personal  injury  is 
caused  to  an  employee  who  is  himself  in  the  exercise  of   , 

*     J  Liability  of 

due  care  and  diligence  at  the  time,  —  employers 

.  '  °r  P61- 

(1)  By  reason  of  any  defect  in  the  condition  of  the   sonai  in- 

i        .  i  juries  suf- 

ways,  works,  or  machinery  connected  with  or   fered  by 

.....  t    .-i  i  i  •  i_     employees 

used  in  the  business  of  the  employer,  which   in  their 
arose   from,    or   had   not   been  discovered  or 
remedied  owing  to,  the  negligence  of  the  employer,  or  of 
any  person  in  the  service  of  the  employer  and  entrusted 
by  him  with  the  duty  of  seeing  that  the  ways,  works,  or 
machinery  were  in  proper  condition  ;  or 

(2)  By  reason  of  the  negligence  of  any  person  in  the  service  of 

the  employer,  entrusted  with  and  exercising  superintend- 
ence, whose  sole  or  principal  duty  is  that  of  superin- 
tendence, or,  in  the  absence  of  such  superintendent,  of 
any  person  acting  as  superintendent  with  the  authority 
or  consent  of  such  employer ;  or J 

1  The  second  clause  in  this  sub-section,  relating  to  "  any  person  acting 
as  superintendent,"  was  added  by  St,  1894,  ch.  499,  §  1. 


370  APPENDIX. 

(3)  By  reason  of  the  negligence  of  any  person  in  the  service  of 
the  employer  who  has  the  charge  or  control  of  any  signal, 
switch,  locomotive  engine,  or  train  upon  a  railroad,  — 
the  employee,  or,  in  case  the  injury  results  in  death,  the  legal  repre- 
sentatives of  such  employee,  shall  have  the  same  right  of  compen- 
sation and  remedies  against  the  employer  as  if  the  employee  had  not 
been  an  employee  of  nor  in  the  service  of  the  employer,  nor  engaged 
in  its  work.  And  in  case  such  death  is  not  instantaneous,  or  is 
preceded  by  conscious  suffering,  said  legal  representatives  may  in 
the  action  brought  under  this  section,  except  as  hereinafter  pro- 
vided, also  recover  damages  for  such  death.  The  total  damages 
awarded  hereunder,  both  for  said  death  and  said  injury,  shall  not 
exceed  five  thousand  dollars,  and  shall  be  apportioned  by  the  jury 
between  the  legal  representatives  and  the  persons,  if  any,  entitled, 
under  the  succeeding  section  of  this  Act,  to  bring  an  action  for 
instantaneous  death.  If  there  are  no  such  persons,  then  no  damages 
for  such  death  shall  be  recovered,  and  the  damages,  so  far  as  the 
same  are  awarded  for  said  death,  shall  be  assessed  with  reference  to 
the  degree  of  culpability  of  the  employer  herein,  or  the  person  for 
whose  negligence  he  is  made  liable.1  A  car  in  use  by  or  in  the 
possession  of  a  railroad  company  shall  be  considered  a  part  of  the 
ways,  works,  or  machinery  of  the  company  using  or  having  the  same 
in  possession,  within  the  meaning  of  this  Act,  whether  such  car  is 
owned  by  it  or  by  some  other  company  or  person.2 

Section  2.    Where  an  employee  is  instantly  killed,  or  dies  without 
conscious  suffering,  as  the  result  of  the  negligence  of  an 

Liability  °  * 

where  an  employer,  or  ot  the  negligence  ot  any  person  tor  whose 
instantly  negligence  the  employer  is  liable  under  the  provisions  of 
this  Act,  the  widow  of  the  deceased,  or,  in  case  there  is 
no  widow,  the  next  of  kin,  provided  that  such  next  of  kin  were  at 
the  time  of  the  death  of  such  employee  dependent  upon  the  wages 
of  such  employee  for  support,  may  maintain  an  action  for  damages 
therefor,  and  may  recover  in  the  same  manner,  to  the  same  extent, 
as  if  the  death  of  the  deceased  had  not  been  instantaneous,  or  as  if 
the  deceased  had  consciously  suffered. 

Section  3.    Except  in  actions  brought  by  the  personal  representa- 

1  The  three  preceding  sentences,   beginning  with    the   words,  "  And 
in  case  such  death  is  not  instantaneous,"  were  added   by  St.  1892,  eh. 
260,  §  1. 

2  The  last  sentence,  beginning  with  the  words,  "  A  car  in  use  by,"  was 
added  by  St.  1893,  ch.  359,  §  1. 


APPENDIX.  371 

tives  under  section  one  of  this  Act  to  recover  damages  for  both  the 
iniury  and  death  of  an  employee,1  the  amount  of  compen- 

.  .  ,          .  .  .  Amount  of 

sation  receivable  under  this  Act  in  cases  of  personal  injury  compenaa- 
shall  not  exceed  the  sum  of  four  thousand  dollars.  In  ceivabie, 
case  of  death  which  follows  instantaneously  or  without  con- 
scious suffering,2  compensation  in  lieu  thereof  may  be  recovered  in 
not  less  than  five  hundred  and  not  more  than  five  thousand  dollars, 
to  be  assessed  with  reference  to  the  degree  of  culpability  of  the 
employer  herein,  or  the  person  for  whose  negligence  he  is  made 
liable  ;  and  no  action  for  the  recovery  of  compensation  for  injury  or 
death  under  this  Act  shall  be  maintained,  unless  notice  of  the  time, 
place,  and  cause  of  the  injury  is  given  to  the  employer  within  thirty 
days,  and  the  action  is  commenced  within  one  year  from  the  occur- 
rence of  the  accident  causing  the  injury  or  death.  The  notice 
required  by  this  section  shall  be  in  writing,  signed  by  the  person 
injured,  or  by  some  one  in  his  behalf ;  but  if,  from  physical  or 
mental  incapacity,  it  is  impossible  for  the  person  injured  to  give  the 
notice  within  the  time  provided  in  said  section,  he  may  give  the 
same  within  ten  days  after  such  incapacity  is  removed  ;  and  in  case 
of  his  death  without  having  given  the  notice,  and  without  having 
been  for  ten  days  at  any  time  after  his  injury  of  sufficient  capacity 
to  give  the  notice,  his  executor  or  administrator  may  give  such  notice 
within  thirty  days  after  his  appointment.8  But  no  notice  given  under 
the  provisions  of  this  section  shall  be  deemed  to  be  invalid  or  insuf- 
ficient solely  by  reason  of  any  inaccuracy  in  stating  the  time,  place, 
or  cause  of  the  injury :  provided  it  is  shown  that  there  was  no  inten- 
tion to  mislead,  and  that  the  party  entitled  to  notice  was  not  in  fact 
misled  thereby.4 

1  The  preceding  words  of  this   section  were  added  by  St.  1892,  ch. 
260,  §  2. 

2  The  words,  "  which  follows  instantaneously  or  without  conscious  suf- 
fering," were  added  by  St.  1892,  ch.  260,  §  2. 

3  The  preceding  sentence  requiring  the  notice  to  be  in  writing,  etc.,  was 
added  by  St.  1888,  ch.  155,  §  1. 

4  Massachusetts  statute  of  1894,  ch.  389,  entitled  "  An  Act  relative  to 
Notices  in  Cases  of  Injuries  to  Persons  or  Property,"  provides  as  fol- 
lows :  — 

Section  1.  In  an  action  to  recover  for  bodily  injury,  or  damage  to  a 
person  in  his  property,  hereafter  sustained,  no  defendant  shall  avail  him- 
self in  defence  of  such  action  of  any  omission  to  state,  in  the  written  notice 
now  required  by  law,  the  time,  place,  or  cause  of  the  injury  or  damage, 
unless,  within  five  days  after  the  receipt  of  a  written  notice  given  by  the 


372  APPENDIX. 

Section  4.    Whenever  an  employer  enters  into  a  contract,  either 
written  or  verbal,  with  an   independent  contractor  to  do 

Liability  of  * 

employer      part  or  such  employer  s  work,  or  whenever  such  contractor 

to  employee  .  .  ,  ,  in 

of  a  con-  enters  into  a  contract  with  a  sub-contractor  to  do  all  or 
sub-con-  any  part  of  the  work  comprised  in  such  contractor's  con- 
tract with  the  employer,  such  contract  or  sub-contract  shall 
not  bar  the  liability  of  the  employer  for  injuries  to  the  employees 
of  such  contractor  or  sub-contractor,  by  reason  of  any  defect  in  the 
condition  of  the  ways,  works,  machinery,  or  plant,  if  they  are  the 
property  of  the  employer,  or  furnished  by  him,  and  if  such  defect 
arose,  or  had  not  been  discovered  or  remedied,  through  the  negli- 
gence of  the  employer,  or  of  some  person  entrusted  by  him  with  the 
duty  of  seeing  that  they  were  in  proper  condition. 

Section  5.  An  employee  or  his  legal  representatives  shall  not  be 
Employer  entitled  under  this  Act  to  any  right  of  compensation  or 
employee1  remedy  against  his  employer  in  any  case  where  such  em- 
fecTwhich"  pl°yee  knew  of  the  defect  or  negligence  which  caused  the 
cftenf  and  injury»  an(^  failed  within  a  reasonable  time  to  give,  or 
failed  to  cause  to  be  given,  information  thereof  to  the  employer,  or 

give  notice  *     » 

thereof.  to  some  person  superior  to  himself  in  the  service  of  the 
employer,  who  had  entrusted  to  him  some  general  superintendence. 

Section  6.  Any  employer  who  shall  have  contributed  to  an  m- 
Compensa-  surance  fund  created  and  maintained  for  the  mutual  pur- 
empioyer8  Pose  °^  indemnifying  an  employee  for  personal  injuries 
tributed  to  f°r  wh-icn  compensation  may  be  recovered  under  this  Act, 
ance'fund  or  *°  any  Te^e^  society  formed  under  chapter  two  hundred 
ofremnefi*  an<^  forty-four  of  the  acts  of  the  year  eighteen  hundred 
pioyees.  an(j  eighty-two,  as  authorized  by  chapter  one  hundred  and 

person  entitled  to  give  the  same  within  the  time  now  required  by  law, 
which  notice  shall  refer  to  the  injury  or  injuries  sustained  and  claim 
damages  or  payment  therefor,  the  person  or  corporation  receiving  such 
notice,  or  some  one  in  his  or  its  behalf,  shall  give  to  the  person  injured, 
or  to  the  person  giving  or  serving  such  notice  in  behalf  of  the  person 
injured,  or  to  the  executor  or  administrator  of  the  person  injured,  a 
notification  in  writing  that  the  notice  given  is  not  in  compliance  with  the 
law,  and  requesting  forthwith  a  further  written  notice  which  shall  comply 
with  the  law.  And  if  the  person  legally  authorized  to  give  such  notice 
shall,  within  five  days  after  the  receipt  of  such  notification  and  request 
for  a  further  written  notice,  give  a  further  written  notice  complying  with 
the  law  as  to  the  time,  place,  and  cause  of  the  injury  or  damage,  such 
notice  shall  be  of  the  same  legal  effect  as  if  it  had  been  given  at  the  time 
of  the  original  notice,  and  shall  be  considered  as  a  part  thereof. 


APPENDIX.  373 

twenty-five  of  the  Acts  of  the  year  eighteen  hundred  and  eighty-six, 
may  prove,  in  mitigation  of  the  damages  recoverable  by  an  employee 
under  this  act,  such  proportion  of  the  pecuniary  benefit  which  has 
been  received  by  such  employee  from  any  such  fund  or  society,  on 
account  of  such  contribution  of  said  employer,  as  the  contribution 
of  such  employer  to  such  fund  or  society  bears  to  the  whole 

.    -i     . .        .,  Not  to  ap- 

contribution  thereto.  piytoin- 

Section  7.    This  Act  shall  not  apply  to  injuries  caused  domestic 

to  domestic  servants  or   farm   laborers  by  other   fellow-  ^tT.Ty"' 

employees,  and  shall  take  effect  on  the  first  day  of  Septem-  "ow"^1" 

ber,  eighteen  hundred  and  eighty-seven.  pioyeea. 
Approved  May  14, 1887. 


IV. 

COLORADO  EMPLOYERS'  LIABILITY  ACT  OF  1893. 
(Session  Laws,  1893,  ch.  77.) 

AN  ACT  concerning  damages  sustained  by  agents,  servants,  or  em- 
ployees. 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado  :  — 
Section  1.   Where,  after  the  passage  of  this  Act,  personal  injury  is 
caused  to  an  employee  who  is  himself  in  the  exercise  of  due  care 
and  diligence  at  the  time,  — 

(1)  By  reason  of  any  defect   in  the  condition  of  the  ways, 

works,  or  machinery  connected  with  or  used  in  the  busi- 
ness of  the  employer,  which  arose  from,  or  had  not  been 
discovered  or  remedied  owing  to,  the  negligence  of  the 
employer,  or  of  any  person  in  the  service  of  the  employer, 
and  entrusted  by  him  with  the  duty  of  seeing  that  the 
ways,  works,  and  machinery  were  in  proper  condition  ;  or 

(2)  By  reason  of  the  negligence  of  any  person  in  the  service  of 

the  employer  entrusted  with  and  exercising  superintend- 
ence, whose  sole  or  principal  duty  is  that  of  superin- 
tendence ; 

(3)  By  reason  of  the  negligence  of  any  person  in  the  service  of 

the  employer  who  has  the  charge  or  control  of  any  switch, 

signal,  locomotive  engine,  or  train  upon  a  railroad, — 

the  employee,  or,  in  case  the  injury  results  in  death,  the  parties 

entitled  by  law  to  sue  and  recover  for  such  damages,  shall  have  the 

same  right  of  compensation  and  remedy  against  the  employer  as  if 


374  APPENDIX. 

the  employee  had  not  been  an  employee  of  or  in  the  service  of  the 
employer,  or  engaged  in  his  or  its  works. 

Section  2.  The  amount  of  compensation  recoverable  under  this 
Act,  in  case  of  a  personal  injury  resulting  solely  from  the  negligence 
of  a  co-employee,  shall  not  exceed  the  sum  of  five  thousand  dollars. 
No  action  for  the  recovery  of  compensation  for  injury  or  death 
under  this  Act  shall  be  maintained  unless  written  notice  of  the  time, 
place,  and  cause  of  the  injury  is  given  to  the  employer  within  sixty 
days,  and  the  action  is  commenced  within  two  years  from  the  occur- 
rence of  the  accident  causing  the  injury  or  death.  But  no  notice 
given  under  the  provisions  of  this  section  shall  be  deemed  invalid  or 
insufficient  solely  by  reason  of  any  inaccuracy  in  stating  the  time, 
place,  or  cause  of  injury ;  provided  it  is  shown  that  there  was  no 
intention  to  mislead,  and  that  the  party  entitled  to  notice  was  not  in 
fact  misled  thereby. 

Section  3.  Whenever  an  employer  enters  into  a  contract,  either 
written  or  verbal,  with  an  independent  contractor,  to  do  part  of  such 
employer's  work,  or  whenever  such  contractor  enters  into  a  contract 
with  a  sub-contractor  to  do  all  or  a  part  of  the  work  comprised  in 
such  contract  or  contracts  with  the  employer,  such  conti-act  or  sub- 
contract shall  not  bar  the  liability  of  the  employer  for  injuries  to  the 
employees  of  such  contractor  or  sub-contractor  by  reason  of  any 
defect  in  the  condition  of  the  ways,  works,  machinery,  or  plant,  if 
they  are  the  property  of  the  employer  or  furnished  by  him,  and  if 
such  defect  arose,  or  had  not  been  discovered  or  remedied,  through 
the  negligence  of  the  employer,  or  of  some  person  entrusted  by  him 
with  the  duty  of  seeing  that  they  were  in  proper  condition. 

Section  4.  An  employee,  or  those  entitled  by  law  to  sue  and 
recover  under  the  provisions  of  this  Act,  shall  not  be  entitled  under 
this  Act  to  any  right  of  compensation  or  remedy  against  his  employer 
in  any  case  where  such  employee  knew  of  the  defect  or  negligence 
which  caused  the  injury,  and  failed  within  a  reasonable  time  to  give 
or  cause  to  be  given  information  thereof  to  the  employer,  or  to  some 
person  superior  to  himself  in  the  service  of  his  employer  who  had 
entrusted  to  him  some  general  superintendence. 

Section  5.  If  the  injury  sustained  by  the  employee  is  clearly  the 
result  of  the  negligence,  carelessness,  or  misconduct  of  a  co-employee, 
the  co-employee  shall  be  equally  liable  under  the  provisions  of  this 
Act  with  the  employer,  and  may  be  made  a  party  defendant  in  all 
actions  brought  to  recover  damages  for  such  injury.  Upon  the  trial 
of  such  action,  the  court  may  submit  to,  and  require  the  jury  to  find 


APPENDIX.  375 

a  special  verdict  upon  the  question  as  to  whether  the  employer  or 
his  vice-principal  was  or  was  not  guilty  of  negligence  proxiniately 
causing  the  injury  complained  of,  or  whether  such  injury  resulted 
solely  from  the  negligence  of  the  co-employee  ;  and  in  case  the  jury 
by  their  special  verdict  find  that  the  injury  was  solely  the  result  of 
the  negligence  of  the  employer  or  vice-principal,  then  and  in  that 
case  the  jury  shall  assess  the  full  amount  of  plaintiff's  damages 
against  the  employer,  and  the  suit  shall  be  dismissed  as  against  the 
employee :  but  in  case  the  jury  by  their  special  verdict  find  that  the 
injury  resulted  solely  from  the  negligence  of  the  co-employee,  the 
jury  may  assess  damages  both  against  the  employer  and  employee. 

V. 

INDIANA  EMPLOYERS'  LIABILITY  ACT  OF  1893. 
(Acts  of  1893,  ch.  130.) 

AN  ACT  regulating  liability  of  railroads  and  other  corporations, 
except  municipal,  for  personal  injury  to  persons  employed  by 
them,  fixing  the  rules  of  evidence  which  shall  govern  in  such 
cases,  and  providing  that  the  decisions  or  statutes  of  other 
States  shall  not  be  pleaded  or  proven  as  a  defense  in  this  State  : 
Provided,  further,  That  its  provisions  shall  not  apply  to  any 
injuries  sustained  before  it  takes  effect,  nor  in  any  manner 
any  suits  or  legal  proceedings  pending  at  the  time  it  takes 
effect,  and  declaring  an  emergency. 

Section  1.  Be  it  enacted  by  the  General  Assembly  of  the  State  of 
Indiana,  That  every  railroad  or  other  corporation,  except  municipal, 
operating  in  this  State,  shall  be  liable  in  damages  for  personal  injury 
suffered  by  any  employee  while  in  its  service,  the  employee  so 
injured  being  in  the  exercise  of  due  care  and  diligence,  in  the  fol- 
lowing cases :  — - 

First.  When  such  injury  is  suffered  by  reason  of  any  defect  in 
the  condition  of  ways,  works,  plant,  tools,  and  machinery  connected 
with  or  in  use  in  the  business  of  such  corporation,  when  such  defect 
was  the  result  of  negligence  on  the  part  of  the  corporation,  or  some 
person  entrusted  by  it  with  the  duty  of  keeping  such  ways,  works, 
plant,  tools,  or  machinery  in  proper  condition. 

Second.  Where  such  injury  resulted  from  the  negligence  of  any 
person  in  the  service  of  such  corporation  to  whose  order  or  direction 
the  injured  employee  at  the  time  of  the  injury  was  bound  to  conform 
and  did  conform. 


376  APPENDIX. 

Third.  Where  such  injury  resulted  from  the  act  or  omission 
of  any  person  done  or  made  in  obedience  to  any  rule,  regulation,  or 
by-law  of  such  corporation,  or  in  obedience  to  the  particular  instruc- 
tions given  by  any  person  delegated  with  the  authority  of  the  corpo- 
ration in  that  behalf. 

Fourth.  Where  such  injury  was  caused  by  the  negligence  of  any 
person  in  the  service  of  such  corporation  who  has  charge  of  any 
signal,  telegraph  office,  switch-yard,  shop,  round-house,  locomotive 
engine,  or  train  upon  a  railway,  or  where  such  injury  was  caused  by 
the  negligence  of  any  person,  co-employee,  or  fellow-servant  engaged 
in  the  same  common  service  in  any  of  the  several  departments  of  the 
service  of  any  such  corporation,  the  said  person,  co-employee,  or 
fellow-servant,  at  the  time  acting  in  the  place  and  performing  the 
duty  of  the  corporation  in  that  behalf,  and  the  person  so  injured 
obeying  or  conforming  to  the  order  of  some  superior  at  the  time  of 
such  injury,  having  authority  to  direct ;  but  nothing  herein  shall  be 
construed  to  abridge  the  liability  of  the  corporation  under  existing 
laws. 

Section  2.  Neither  an  employee  nor  his  legal  representative  shall 
be  entitled  under  this  Act  to  any  right  of  compensation  or  remedy 
against  the  corporation  in  any  case  where  the  injury  results  from 
obedience  to  any  order  which  subjects  the  employee  to  palpable 
danger,  nor  where  the  injury  was  caused  by  the  incompetency  of  the 
co-employee  and  such  incompetency  was  known  to  the  employee 
injured,  or  such  injured  employee,  in  the  exercise  of  reasonable 
care,  might  have  discovered  such  incompetency,  unless  the  employee 
so  injured  gave,  or  caused  to  be  given,  information  thereof  to  the 
corporation,  or  to  some  superior  entrusted  with  the  general  superin- 
tendence of  such  co-employee,  and  such  corporation  failed  or  re- 
fused to  discharge  such  incompetent  employee  within  a  reasonable 
time,  or  failed  or  refused  within  a  reasonable  time  to  investigate  the 
alleged  incompetency  of  the  co-employee  or  superior  and  discharge 
him  if  found  incompetent.1 

Section  3.  The  damages  recoverable  under  this  Act  shall  be  com- 
mensurate with  the  injury  sustained,  unless  death  results  from  such 
injury,  when  in  such  case  the  action*  shall  survive  and  be  governed 
in  all  respects  by  the  law  now  in  force  as  to  such  actions  :  provided 
that  where  any  such  person  recovers  a  judgment  against  a  railroad 
or  other  corporation,  and  such  corporation  takes  an  appeal,  and 
pending  such  appeal  the  injured  person  dies,  and  the  judgment 

1  This  section  was  repealed  by  Indiana  St.  1895,  ch.  64,  §  1. 


APPENDIX.  377 

rendered  in  the  court  below  be  thereafter  reversed,  the  right  of 
action  of  such  person  shall  survive  to  his  legal  representative* 

Section  4.  In  case  any  railroad  corporation  which  owns  or  oper- 
ates a  line  extending  into  or  through  the  State  of  Indiana  and  into 
or  through  another  or  other  States,  and  a  person  in  the  employ  of 
such  corporation,  a  citizen  of  this  State,  shall  be  injured,  as  provided 
in  this  Act,  in  any  other  State  where  such  railroad  is  owned  or 
operated,  and  a  suit  for  such  injury  shall  be  brought  in  any  of  the 
courts  of  this  State,  it  shall  not  be  competent  for  such  corporation 
to  plead  or  prove  the  decisions  or  statutes  of  the  State  where  such 
person  shall  have  been  injured  as  a  defense  to  the  action  brought  in 
this  State. 

Section  5.  All  contracts  made  by  railroads  or  other  corporations 
with  their  employees,  or  rules  or  regulations  adopted  by  any  corpo- 
ration releasing  or  relieving  it  from  liability  to  any  employee  having 
a  right  of  action  under  the  provisions  of  this  Act,  are  hereby  declared 
null  and  void.  The  provisions  of  this  Act,  however,  shall  not  apply 
to  any  injuries  sustained  before  it  takes  effect,  nor  shall  it  affect 
in  any  manner  any  suit  or  legal  proceedings  pending  at  the  time  it 
takes  effect. 

Section  6.  An  emergency  exists  for  the  immediate  taking  effect 
of  this  Act,  and  the  same  shall  be  in  force  from  and  after  its  passage. 


TABLE   OF  CASES  CITED. 


References  are  to  Sections. 


Adams  v.  Fitchburg  Ry.,  67 
Vt.  76  194 

Addison  v.  Bishop,  2  Vt.  231       210 

Aerkfetz  v.  Humphreys,  145 
U.  S.  418  116 

Alabama  &c.  Ry.  v.  Hawk,  72 
Ala.  112  214 

—  v.  Richie,  99  Ala.  346     115 

v.  Smith,  81  Ala.  229       134 

v.  Yarbrough,  83  Ala. 

238  141 

Alabama  Coal  Co.  v.  Pitts,  98 

Ala.  285  105,  117,  146,  211, 241 
Alabama  Great  Southern  Ry. 

v.  Carroll,  97  Ala.  126  4,  6, 
44,  195,  196 
v.  Chapman,  83  Ala. 

453  134 

Alaska,  The,  130  U.  S.  201  96 

Albro  v.  Agawam  Canal  Co.,  6 

Gush.  75  50,  189 

—  v.  Jacquith,  4  Gray,  99       68 
Allen  v.  Pittsburgh  &c.  Ry.,  45 

Md.  41  219 

-  v.  Smith  Iron  Co.,  160 

Mass.  557  28,  165 

American  Legion  of  Honor  v. 

Perry,  140  Mass.  580  111 

Anderson  v.  Milwaukee  &c. 

Ry.,  37  Wis.  321  192 

Antelope,  The,  10  Wheat.  66  194 
Armstrong  v.  Armstrong,  29 

Ala.  538  3 
v.  Beadle,  5  Sawyer, 

484  197 

Arthur  v.  Homestead  Ins.  Co., 

78  N.  Y.  462  137 

Ash  v.  Baltimore  &c.  Ry.,  72 

Md.  144  192,  193 

Ashley  v.  Hart,  147  Mass. 

673  26,  55 


Ashman  v.  Flint  &c.  Ry.,  90 
Mich.  567  86 

Aston  v.  Newton,  134  Mass. 
507  128,  129,  130 

Atchison  &c.  Ry.  v.  Ledbetter, 
21  Am.  &  Eng.  R.  R.  Cases, 
555  87 

v.  Wagner,  33  Kans. 

660  24 

Austin  v.  Boston  &  Maine  Ry., 
164  Mass.  282  183 

v.  New  Jersey  Steam- 
boat Co.,  43  N.  Y.  82  115 

v.  Wilson,  4  Cush.  273     152 


Babcock  v.  Babcock,  46  Mo. 

243  135 

Baddeley  v.  Granville,  19  Q. 

B.  D.  423  6,  7,  74,  177,  178 

Bailey  v.  Everett,  132  Mass. 

441  130 

Baker  v.  Bolton,  1  Camp.  493  96 
Ballou  v.  Chicago  &c.  Ry.,  54 

Wis.  257  29 

Baltimore  &c.  Ry.  v.  Mackey, 

157  U.  S.  72  44, 147, 156 

Baltimore  &  Ohio  Ry.  v.  Baugh, 

149  U.  S.  368  19,  78,  79 
v.  Fitzpatrick,  36  Md. 

619  15 

Bancroft  v.  Boston  &c.  Rv.,  11 

Allen,  34  96 

Bank  of  Augusta  v.  Earle,  13 

Peters,  519  18 

Barbier  v.  Connolly,  113  U.  S. 

27  84 

Barbour  County  v.  Horn,  48 

Ala.  566  152 

Barnard  v.  Poor,  21  Pick.  378  152 
Barnowsky  v.  Helson,  89  Mich. 

523  158 


380 


TABLE    OF    CASES    CITED. 


References  are  to  Sections. 


Barton  v.  Barbour,  104  U.  S. 

126  83 

-  v.  Higgins,  41  Md. 

539  110 

Baulec  v.  New  York  &c.  Ry.,' 

59  N.  Y.  356  86,  202 

Beauregard  v.  Webb  Granite 

Co.,  160  Mass.  201  2,  130, 

226, 227 
Beecher  v.  Derby  Bridge  Co., 

24  Conn.  491  152 

Bell  v.  Nichols,  38  Ala.  678  109 
Benson  v.  Goodwin,  147  Mass. 

237  50,  189 

Berea  Stone  Co.  v.  Kraft,  31 

Ohio  St.  287  51,  79 

Best  v.  Kinston,  106  N.  C. 

205  136 

Biddle  v.  Wilkins,  1  Peters, 

686  110 

Birmingham  Furnace  Co.  v. 

Gross,  97  Ala.  220  90,  134 

Birmingham  Ry.  v.  Allen,  99 

Ala.  359  3,  25,  34,  174, 

175,  180 

v.    Baylor,    101    Ala. 

488  169 

v.   Wilmer,    97    Ala. 

165  218 

Bivins  v,  Georgia  Pacific  Ry., 

96  Ala.  325  165 

Bjbjian  v.  Woonsocket  Rubber 

Co.,  164  Mass.  214  170,  183, 
185,  186 
Blair  v.  Pelham,  118  Mass. 

420  213 

Blake  v.  Maine  Central  Ry.,  70 

Me.  60  50,  78 

Blamires  v .  Lancashire  &c.  Ry., 

L.  R.  8  Ex.  283  178 

Blunt  v.  Little,  3  Mason,  102  153 
Bockover  v.  Life  Asso.,  77  Va. 

85  110 

Bolton  v.  Georgia  Pacific  Ry., 

83  Ga.  659  135 

Boston  &c.  Ry.  v.  State,  32  N. 

H.  215  85 

Boswell  v.  Laird,  8  Cal.  469  93 
Bowers  v.  Connecticut  River 

Ry.,  162  Mass.  312  43,  45,  88, 
121,  164,  234 
Bowes  v.  Boston,  155  Mass. 

344  131 


Boyd  ».   Clark,  8   Fed.   Rep. 

849  137,  138 

Boyle  v.  New  York  &c.  Ry., 

151  Mass.  102  122 

Brady  v.  Ludlow  Manuf.  Co., 

154  Mass.  468  31,  227 

Brannigan  v.  Robinson,  [1892] 

1  Q.  B.  344  34,  40 

Brick  v.  Bosworth,  162  Mass. 

334  130,  240 

Bridgton  v.  Bennett,  23  Me. 

420  210 

Brodeur  v.  Valley  Falls  Co.,  16 

R.  I.  448  50,  78 

Bromley  v.  Birmingham  Ry., 

95  Ala.  397  148,  173,  207 

Brouillette  v.  Connecticut  River 

Ry.,  162  Mass.  198  37,  203 

Brown  v.  Maxwell,  6  Hill,  592  187 
-  v.  Winona  &c.  Ry.,  27 

Minn.  162  50 

Browne  v.  New  York  &c.  Ry., 

158  Mass.  247  16,  122,  206 

Bucher  v.  Cheshire  Ry.,  125 

U.  S.  555  17,  231 

Bucklew  v.  Central  Iowa  Ry., 

64  Iowa,  603  84 

Burgess  v.  Davis  Sulphur  Ore 

Co.,  165  Mass.  71  116,  122,  185 
Burgin  t;.  Louisville  &c.  Ry., 

97  Ala.  274  171 

Burns  v.  Washburn,  100  Mass. 

457  39,  62 

Burrill  v.  Eddy,  160  Mass.  198  65 
Butler  v.  Boston  Steamship  Co., 

130  U.  S.  527  197 

Byrnes  v.  New  York  &c.  Ry., 

113  N.  Y.  251  239 

Cahill  v.  Hilton,  106  N.  Y.  512    120 

Cameron   v.  Nystrom,    [1893] 
A.  C.  308  12,  66,  93 

Campbell  v.  Russell,  139  Mass. 
278  241 

Canadian  Pacific  Ry.  v.  John- 
son, 61  Fed.  Rep.  738        78,  139 

Canterbury     v.     Boston,     141 
Mass.  215  130,  131 

Carey  v.  Berkshire  Ry.,  1  Gush. 
(Mass.)  475  96, 144 

Caron  v.  Boston  &  Albany  Ry., 
164  Mass.  523  70,  76,  119, 

172,  183 


TABLE   OF   CASES   CITED. 


381 


References  are  to  Sections. 


Carpue  v.  London  &c.   Ry.,  5 

Q.  B.  747  157 

Carroll  v.  Western  Union  Tel. 

Co.,  160  Mass.  152  28 

-  v.  Willcutt,  163  Mass. 

221  27,  58,  167 

Carruthers  v.  Chicago  &c.  Ry., 

55  Kans.  600  24 

Cashman  v.  Chase,  156  Mass. 

342  60, 61 

Cassady  v.  Boston  &  Albany 

Ry.,  164  Mass.  168  174,  182 

Cavanagh  v.  Ocean  Steam 

Nav.  Co.,  19  N.  Y.  Civ.  Pro. 

391  136 

Central  Railroad  v.  Richards, 

62  Ga.  306  218,  233 

Chambliss  v.  Mary  Lee  Coal 

Co.,  103  Ala.  000  115,  156 

Chandler  v.  New  York  &c. 

Ry.,  159  Mass.  589  16,  206 

Chapman  v.  Fish, 6  Hill  (N.  Y.), 

554  109 

Cherry  v.  Speight,  28  Tex.  503  110 
Chicago  v.  Major,  18  111.  349  111 
Chicago  &c.  Ry.  v.  Avery,  109 

111.  314  44 

—  v.  Doyle,  60  Miss.  977 

191,  195,  196 

v.  Harwood,  88  111.  88     151 

v.  Moranda,  93  111.  302     78 

v.  Morris,  26  111.  400       100 

—   v.   Pontius,   52    Kans. 
264  ;  157  U.  S.  209  84 

v.  Ross,  112  U.  S.  377' 

78,84 

v.    Stahley,    62    Fed. 

Rep.  363  17,  84 

—  t;.  Wiggins  Ferry  Co., 
119  U.  S.  615  220 

v.   Wymore,  40  Neb. 

645  98 

Child  v.  Boston,  4  Allen,  41  14 
Church  v.  Milwaukee,  31  Wis. 

512  213 

Cincinnati  v.  Stone,  5  Ohio  St. 

38  12 

Ciriack  v.  Merchants'  Woollen 

Co.,  146  Mass.  182  186 

City  of  Norwich,  The,  118 

U.  S.  468  8,  197 

Clark  v.  Crout,  34  So.  Car. 

417  15 


Clark  v.   Jenkins,   162  Mass. 
397  235 

17.  Merchants  &c.  Co., 

151  Mass.  352  1 

—  v.  New  York  &c.  Ry., 
160  Mass.  39  97 

Clarke  v.  Holmes,  7  H.  &  N. 
937  25 

Clarkson  v.  Musgrave,  9  Q.  B. 
D.  386  239 

Clatsop  Chief,  The,  8  Fed.  Rep. 
163  20 

Clements  v.  London  &c.  Ry., 
[1894]  2  Q.  B.  482  10 

Cleveland  &c.  Ry.  v.  Keary,  3 
Ohio  St.  201  51,  79 

Clifford  y.  Old  Colony  Ry.,  141 
Mass.  564  52,  78 

Coan     v.     Marlborough,     164 
Mass.  206  14,  185 

Coates  v.  Mackey,  56  Md.  416    219 

Cobb  v.  Malone,  92  Ala.  630       233 

Coffee  17.  New  York,  New  Ha- 
ven  &    Hartford    Railroad, 
155  Mass.  21       2,  13,  29,  43,  45, 
49,  188,  192,  204 

Collier   v.    Coggins,   103    Ala. 
000  57, 217 

Collins  v.  St.  Paul  &c.  Ry.,  30 
Minn.  31  78 

Columbia  Railroad  Co.  v.  Haw- 
thorne, 144  U.  S.  202  201 

Columbus  &c.  Ry.  v.  Bradford, 
86  Ala.  574         25,  100,  105,  113 

y.  Bridges,  86  Ala.  448 

113, 149 

Commonwealth    v.    Boston    & 
Lowell  Ry.,  126  Mass.  61          47 

».  Eastern  Ry.,  5  Gray, 

473  100 

v.  Green,  17  Mass.  515    194 

t7.   Hartnett,  3    Gray, 

450  3 

-    v.   Vermont    &c.  Ry., 

108  Mass.  7  7 

Connecticut  Mut.  Ins.  Co.  v. 

New  York  &c.  Ry.,  25  Conn. 

265  96 

Connelly  v.  Hamilton  Woollen 

Co.,  163  Mass.  156  182,  183, 
211 
Connolly  v.  Eldredge,  160  Mass. 

566  182 


382 


TABLE    OF    CASES    CITED. 


References  are  to  Sections. 


Connolly  v.  Waltham,  156  Mass. 

368  14,  25,  56,  166 

Connors  v.  Durite  Manuf.  Co., 

156  Mass.  163  160 

-  v.  Lowell,  158  Mass. 

336  129 
v.  Morton,  160  Mass. 

333  202 

C&nroy  v.  Clinton,  158  Mass. 

318  14,  40,  326 

—  v.  Vulcan  Iron  Works, 

60  Mo.  35  25 

Cook  v.  Central  Ry.,  67  Ala. 
533  115 

Coombs  v.  New  Bedford  Cord- 
age Co.  102  Mass.  572  186 

Cooper  v.  Pittsburgh  &c.  Ry., 
24  W.  Va.  37  80 

Corbin  v.  American  Mills,  27 
Conn.  274  12 

Corcoran  v.  Boston  &  Albany 
Ry.,  133  Mass.  507  96,  172 

—  v.  Peekskill,  108  N.  Y. 
151  201 

Cordell  v.  N.  Y.  Central  Ry., 

75  N.  Y.  330  16 

Coughlin  v.  Boston  Tow-Boat 

Co.,  151  Mass.  92  1 

Coullard  v.  Tecumseh  Mills, 

151  Mass.  85  186 

Counsell  v.  Hall,  145  Mass. 

468  25 

Cowan  v.  Chicago  &c.  Ry.,  80 

Wis.  284  24,  88 

Cox  v.  Great  Western  Ry.,  9 

Q.  B.  D.  106  70,  77 

Crapo  v.  Kelly,  16  Wall.  610  197 
Cronin  v.  Boston,  135  Mass. 

110  128,  129,  130 

Crowley  v.  Pacific  Mills,  148 

Mass.  228  186 

Cummings  v.  National  Furnace 

Co.,  60  Wis.  603  157 

Dacey  v.  Old  Colony  Ry.,  153 

Mass.  112  70,  76 

Dalton  v.  Salem,  131  Mass. 

551  130 

Daly  v.  New  Jersey  Steel  Co., 

155  Mass.  1  97,  111,  112,  126 
Dane  v.  Cochrane  Chemical  Co., 

164  Mass.  453  11, 12 


Dantzler    v.    De     Bardeleben 

Coal  Co.,  101  Ala.  309  55 

Davis  v.  Charlton,  140  Mass. 

422  130 

-  v.  Detroit  &c.  Ry.,  20 

Mich.  105  189 

—  v.  New  York  &c.  Ry., 

159  Mass.  532  52,  69,  108, 
116,  117,  188,  194 
v.  Western  Ry.,  104 

Ala.  000  91,  121,  171 

Dean  v.  East  Tennessee  &c. 

Ry.,  98  Ala.  586  11,  230 

Debevoise  v.  New  York  &c.  Ry., 

98  N.  Y.  377  195,  219 

De  Forest  v.  Thompson,  40  Fed. 

Rep.  375  110 

Degnan  v.  Jordan,  164  Mass. 

84  170 

De  Graff  v.  New  York  Central 

&c.  Ry.,  76  N.  Y.  125  29,  187 
Delafield  v.  Illinois,  2  Hill 

(N.  Y.),  159  194 

Dennick  v.  Railroad  Co.,  103 

U.  S.  11  16,  18,  108,  191, 

192,  194,  198 
Denver  &c.  Ry.  v.  Wilson,  12 

Colo.  20  150 

Denver  Rapid  Transit  Co.  v. 

Dwyer,  20  Colo.  132  115 

Detroit  v.  Osborne,  135  U.  S. 

492  17 

Devine  v.  Boston  &  Albany 

Ry.,  159  Mass.  348  70 

Dewey  v.  Detroit  &c.  Ry.,  97 

Mich.  329  45,  80 

Dick  v.  Railroad  Co.,  38  Ohio 

St.  389  78 

Dickinson  v.  North  Eastern  Ry., 

2H.&C.  735  106 

Dingley  v.  Star  Knitting  Co., 

134  N.  Y.  552  160 

Ditberner  v.  Chicago  &c.  Ry., 

47  Wis.  138  85,  116 

Dixon  v.  Pluns,  98  Cal.  384  157 
Doe  v.  M'Farland,  9  Cranch, 

151  110 

Dolan  v.  Alley,  153  Mass. 

380  132,  230 

Donahoe  v.  Old  Colony  Ry., 

153  Mass.  356  76, 117, 

128,  130 


TABLE   OF   CASES    CITED. 


383 


References  are  to  Sections. 


Donahue  v.  Drown,  154  Mass. 

21  159 

Donnelly  v.  Fall  River,  130 

Mass.  115  129 

Dorsey  v.  Phillips  Co.,  42  Wis. 

583  175 

Dowd  v.  Boston  &  Albany  Ry., 

162  Mass.  185  54 

Downey  v.  Sawyer,  157  Mass. 

418  201 

Doyle  v.  Dixon,  97  Mass.  208  153 
-v.  Fitchburg  Ry.,  162 

Mass.  66  7,  144 

Driscoll  v.  Fall  River,  163 

Mass.  105  127,  200 

Drommie  v.  Hogan,  153  Mass. 

29  128,  131 

Duffy  v.  Upton,  113  Mass. 

544  158 

Dyer  v.  Talcott,  16  111.  300  16 

East    Tennessee    &c.    Ry.    v. 

Gurley,  12  Lea,  46  78 

v.  Rush,  15  Lea,  145  78 

—  v.  Turvaville,  97  Ala. 

122  183 

Eastwood  v.  Kennedy,  44  Md. 

563  137 

E.  B.  Ward,  Jr.,  The,  17  Fed. 

Rep.  456  20,  197 

Eden  v.  Lexington  &c.  Ry.,  14 

B.  Monroe  (Ky.),  204  % 
Ely  v.  Peck,  7  Conn.  239  194 
v.  St.  Louis  &c.  Ry.,  77 

Mo.  34  201 

Engel  v.  New  York  &c.  Ry., 

160  Mass.  260  47 
Eureka   Co.   v.    Bass,  81  Ala. 

200  25,  174,  175 

Evansville  Ry.  v.  Hiatt,  17 

Ind.  102  16 

Exposition  Cotton  Mills  v. 

Western    &c.    Ry.,   83  Ga. 

441  134 

Farwell  v.  Boston  &  Worcester 
Ry.,  4  Met.  49  65,  78,  189 

Fay  v.  Minneapolis  &  St.  Louis 
Ry.,  30  Minn.  231  43 

Feely  v.  Pearson  Cordage  Co., 

161  Mass.  426  183 
Feital    v.  Middlesex  Ry.,  109 

Mass.  398  157 


Felt  v.  Boston  &  Maine  Ry., 

161  Mass.  311  16,  172 

Feltham  v.  England,  L.  R.  2 

Q.  B.  33  51 

Ferren  v.  Old  Colony  Ry.,  143 

Mass.  197  183 

Finnegan  v.  Fall  River  Gas 

Co.,  159  Mass.  311  47 

Finnell  v.  Southern  Kans.  Ry., 

33  Fed.  Rep.  427  140 

Fisher  v.  Boston,  104  Mass. 

87  14 

Fisk  v.  Central  Pacific  Ry.,  72 

Cal.  38  187 

-  v.  Fitchburg  Ry.,  158 

Mass.  238  182 

Fitzgerald  v.  Boston  &  Albanv 

Ry.,  156  Mass.  293  59,  61,  62 
v.  Connnecticut  River 


Paper  Co.,  155  Mass.  155 

175,  182,  185 
Fleming    v.    Springfield,     154 

Mass.  520  215 

Flower    v.-  London    &c.    Ry., 

[1894]  2  Q.  B.  65  10 

Floyd  v.   Sugden,   134    Mass. 

563  50,  189 

Flynn  v.  Campbell,  160  Mass. 

128  183 
v.  Kansas  City  &c.  Ry., 

78  Mo.  195  25,  175 
v.  Salem,  134  Mass. 

a^i  so 

Foley  v.  Pettee   Machine  Co., 

149  Mass.  294  124 

Ford  v.  Fitchbnrg  Ry.,  110 

Mass.  240  25,  30,  156,  175 

Forsyth  v.  Hooper,  11  Allen, 

419  12,  156,  233 

Fortin  v.  Easthampton,  142 

Mass.  486  131 

Foster  v.  Yazoo  &c.  Ry.  (Miss.), 

18  So.  Rep.  380  136 

Fourth  National  Bank  v. 

Francklyn,  120  U.  S.  747  220 
Fowler  v.  Chicago  &c.  Ry.,  61 

Wis.  159  78 

Frazier  v.  Pennsylvania  Ry.,  38 

Pa.  St.  104  189,  202 

Fuller  v.  Hyde  Park,  162  Mass. 

51  131 

Fulton  Mills  v.  Wilson,  89  Ga. 

318  8 


384 


TABLE    OF    CASES    CITED. 


References  are  to  Sections. 


Gardner  v.  Michigan  Central 
Ry.,  150  U.  S.  349  86,  156, 

231 

-  v.    Weymouth,    155 
Mass.  595  129,  131 

Garnett,  In  re,  141  U.  S.  1  197 
Gartland  v.  Toledo  &c.  Ry.,  67 

111.  498  187 

Gaynor  v.  Old  Colony  Ry.,  100 

Mass.  208  156 

Genesee  Chief  v.  Fitzhugh,  12 

How.  443  197 

George  and  Richard,  The,  24 

L.  T.  (N.  S.)  717  106 

Georgia  Pacific. Ry.  v.  Brooks, 

84  Ala.  138  38 
-  v.  Propst,  83  Ala.  518  ; 

85  Ala.  203  11,  12,  32 
Georgia  Ry.  v.  Oaks,  52  Ga. 

410  85 

Geyette  v.  Fitchburg  Ry.,  162 
Mass.  549  113,  172 

Gibbs  v.  Great  Western  Ry., 
12  Q.  B.  D.  208  1,  75,  169 

Gibson  v.  Sullivan,  164  Mass. 
557  170 

Gillshannon  v.  Stony  Brook 
Ry.,  10  Cush.  228  77 

Gilmau  v.  Eastern  Ry.,  13  Al- 
len, 433  22,  86,  200 

-  v.    Gilman,    54    Me. 

453  109 

Gleason  v.  New  York  &c.  Ry., 

159  Mass.  68  174,  181,  182 

Gleeson   v.    Virginia    Midland 

Ry.,  140  U.  S.  435  157 

Goddard    v.    Mclntosh,    161 

Mass.  253  187 

Goldthwait    v.   Haverhill    &c. 

Ry.,  160  Mass.  554  182, 

183,  189 
Gonsior  v.  Minneapolis  &c.  Ry., 

36  Minn.  385  50 

Goodes    v.    Boston   &   Albany 

Ry.,    162    Mass.    287 

175,  182 
Goodrich  v.  New  York  Central 

&c.  Ry.,  116  N.  Y.  398  44 

Gormley  v.  Ohio  &c.   Ry.,   72 

Ind.  31  78 

Gottleib   v.  New  York,   Lake 

Erie    &   Western   Railroad, 

100  N.  Y.  462  43,  44 


Gould  v.  McKenna,  86  Pa.  St. 

297  154 

Government  Street  Ry.  v.  Han- 
Ion,  53  Ala.  70  224 
Graham  v.  Badger,  164  Mass. 

42  159,  162 
v.  Boston  &  Albany  Ry., 

156  Mass.  4  33,  122,  168, 

170 
Grand  Trunk  Ry.  v.  Ives,  144 

U.  S.  408  -  156 

Green  v.  Hudson  River  Ry.,  2 

Keyes  (N.  Y.),  294  95 

Greene  v.  Minneapolis  &c.  Ry., 

31  Minn.  248  25 

Griffin  v.  Boston  &  Albany 

Ry.,  148  Mass.  143  161,  162 
-v.  Ohio  &c.  Ry.,  124 

Ind.  326  183,  185,  187 

v.  Overman  Wheel  Co., 


61  Fed.  Rep.  568        16,  119, 207 
Griffiths  v.  Dudley,  9  Q.  B.  D. 
357  6,  49,  86,  187 

v.  London   &c.    Docks 


Co.,  12  Q.  B.  D.  495  ;  13  Q. 

B.  D.  259  24 

—  v.  Wolfram,  22  Minn. 

185  68 

Grimsley  v.  Hankins,  46  Fed. 

Rep.  400  158 

Grogan  v.  Worcester,  140  Mass. 

227  130 

Gross  v.  Delaware  &c.  Ry.,  50 

N.  J.  L.  317  96 

Gustaf  sen  v.  Washburn  &  Moen 

Manuf.  Co.,  153  Mass.  468  33, 
126,  172,  183 
Guthrie  v.  Maine  Central  Ry., 

81  Me.  572  24,  161 
Gwin  v.  Barton,  6  How.  7  194 
v.  Breedlove,  2  How. 

29  194 

Hacket  v.   Potter,  135    Mass. 

349  219 

Hafford  v.  New  Bedford,  16 

Gray,  297  14 

Haley  v.  Mobile  &c.  Ry.,  7 

Baxter,  239  78 
Hall  v.  Page,  4  Ga.  428  233 
v.  Posey,  79  Ala.  84  156 


Halley,    The,   L.   R.   2  P.    C. 
193  192 


TABLE    OF    CASES    CITED. 


385 


References  are  to  Sections. 


Halsey  v.   McLean,   12  Allen 
(Mass.),  438  137 

Hanley  v.  Donogbue,   116    U. 
S.  1  220 

Hannah    v.  Connecticut   River 
Ry.,  154  Mass.  529  121, 

181,  183 

Hanson  v.  Ludlow  Manuf.  Co., 
162  Mass.  187  186 

Harkins  v.  Standard  Sugar  Re- 
finery, 122  Mass.  400  93 

Harmon   v.  Old   Colony   Ry., 
165  Mass.  100  141 

Harris  v.  McNamara,  97  Ala. 
181  96,  187 

v.   White,    81    N.   Y. 

532  219 

Harrisburg,    The,    119    U.    S. 

199  96,  137,  197 

Harrison  v.  London  &c.  Ry., 

Times  Law   Rep.,  vol.  i.  p. 

519  106 

Hart  v.  Lancashire  &c.  Ry., 

21  L.  T.  (N.  S.)  261  201 

Hartford  &c.  Ry.  v.  Andrews, 

36  Conn.  213  103 

Harvey  v.  New  York  Central 

Ry.,  88  N.  Y.  481  78 

Hasty  17.  Sears,  157  Mass. 

123  66 

Hathaway  v.  Michigan  Central 

Ry.,  51  Mich.  253  183,  186 

Hathorn  v.  Richmond,  48  Vt. 

557  154 

Hatt  v.  Nay,  144  Mass.  186  189, 

202 
Hawley  v.  Northern  Central 

Ry.,  82  N.  Y.  370  175 

Haydeu  v.  Smithville  Manuf. 

Co.,  29  Conn.  548  24 

Hayes  v.  Western  Railroad,  3 

Cush.  270  189 

v.    Williams,  17  Colo. 

465  150 

Healy  v.  Root,  11  Pick.  389  194 
Hector  v.  Boston  Electric  Light 

Co.,  161  Mass.  558  237,  238 

Hedderick  v.  State,  101  Ind. 

564  8 

Hedlev  v.  Pinkney  Steamship 

Co.,  [1892]  1  Q.  B.  58  189 

Helton  v.  Alabama  &c.  Ry.,  97 

Ala.  275  199 


Hennessy  v.  Boston,  161  Mass. 

502  14,  40,  58,  166,  188 

Hermann  v.  Carrollton  Ry.,  11 

La.  Ann.  5  95 

Herrick  v.  Minneapolis  &c. 

Ry.,  31  Minn.  11  84,  191,  193 
Hexamer  v.  Webb,  101  N.  Y. 

377  12 

Hey  wood  v.  Stiles,  124  Mass. 

275  156 

Hibbard  v.  Thompson,  109 

Mass.  286  154 

Hicks  v.  New  York  &c.  Ry., 

164  Mass.  424  157 

v.  Stone,  13  Minn.  434  233 


Higgins  v.  Central  New  Eng- 
land Ry.,  155  Mass.  176  99, 
108,  152,  191,  194,  199 
Highland  Avenue  &c.  Ry.  v. 

Duseuberry,  94  Ala.  413  2,  226, 

228 
v.  Walters,  91  Ala. 

435  179, 270 

Hill  v.  Boston,  122  Mass.  344  14 
—  v.  Supervisors,  119  N. 

Y.  344  136 

Hilton  t>.  Alabama  &c.  Ry.,  97 

Ala.  275  191 

Hilts  v.  Chicago  &c.  Ry.,  55 

Mich.  437  86 

Hinds  v.  Overacker,  66  Ind. 

547  68 

Hissong  v.  Richmond  &c.  Ry., 

91  Ala.  514  6,  lio,  212 

Hocking  v.  Howard  Ins.  Co., 

130  Pa.  St.  170  136 

Hodges  v.  Percival,  132  111. 

53  201 

Hodnett  v.  Boston  &  Albany 

Ry.,  156  Mass.  86  101,  111 

Holdeu  v.  Fitchburg  Ry.,  129 

Mass.  268  30 

Holland  v.  Tennessee  Coal  Co., 

91  Ala.  444  29 

Hollenbeck  v.  Berkshire  Ry.,  9 

Cush.  478  96 

Holmes  v.  Oregon  &c.  Ry.,  5 

Fed.  Rep.  75  20 

Homer  v.  Brown,  16  How.  354  231 
Hornsby  v.  Eddy,  56  Fed.  Rep. 

461  82 

Horton  v.  Critchfield,  18  111. 

133  219 


386 


TABLE    OF    CASES    CITED. 


References  are  to  Sections. 


Hough  v.  Railway  Co.,  100  U. 

S.  213  19,  25,  86,  175 

Houlihan  v.  Connecticut  River 

Ry.,  164  Mass.  555  111,  172 

Houston  &c.  Ry.  v.  Cowser,  57 

Texas,  293    "  149 

-  v.  Rider,  62  Texas,  267     78 
Hover  v.  Pennsylvania  Ry.,  25 

Ohio  St.  667  195 

Howard  v.  Bennett,   58  L.  J. 
(Q.  B.)  129  92 

-  v.  Hood,  155  Mass.  391     50 
Howe  v.  Finch,  17  Q.  B.  D.  187    40 
Ho  wells  v.  Landore  Steel  Co., 

L.  R.  10  Q.  B.  62  51 

Howser  v.  Cumberland  &c.  Ry., 

80  Md.  146  157 

Hubgli  v.  New  Orleans  &c. 

Ry.,  6  La.  Ann.  495  95 

Hudson  v.  Chicago  &c.  Ry.,  59 

Iowa,  581  201 

—  v.  Rome  &c.  Ry.,  145 

N.  Y.  408  158,  159 

Huff  v.  Austin,  46  Ohio  St. 

386  157 

».  Ford,  126  Mass.  24  12 

Hughes  v.  Cincinnati  &c.  Ry., 

39  Ohio  St.  461  93 

—  v.  Lawrence,  160  Mass. 
474  129 

Hull  v.  Mitcheson,  64  N.   Y. 

639  219 

Hunt  v.  Johnson,  44  N.  Y.  27  219 
Huntingdon  &c.  Ry.  v.  Decker, 

84  Pa.  419  151 

Huntington  v.  Attrill,  146  U.  S. 

657  18,  191,  192,  194 

Hyatt  v.  Adams,  16  Mich.  180  96 
Hyde  v.  Wabash  &c.  Ry.,  61 

Iowa,  441  195 

Illinois  Central  Ry.  v.  Cragin, 

71  111.  177  104 

Indiana  v.  Helmer,  21  Iowa, 

370  194 

Indianapolis  &c.  Ry.  v.  Keely, 

23  Ind.  133  96,  100 
v.  Ott,  11  Ind.  App. 

564  25, 175 

Indianapolis  Co.  v.  Horst,  93 

U.  S. 291  207 

Ingalls  v.  Bills,  9  Met. 

(Mass.)  1  29 


Inland  Coasting  Co.  v.  Tolson, 

139  U.  S.  551  115 

Insurance  Co.  v.  Brame,  95 

U.  S.  754  96 

International  &c.  Ry.  v.  Hin- 

zie,  82  Tex.  623  9 

Interstate  Commerce  Com.  v. 

Baltimore  &c.  Ry.,  145  U.  S. 

263  3 

Iron  Ry.  v.  Mowery,  36  Ohio 

St.  418  157 

Irwin  v.  Alley,  158  Mass.  249  16, 
172,  206,  207 
Isaacs  v.  Boyd,  5  Porter  (Ala.), 

388  15 

Jackson   v.    Clopton,   66  Ala. 

29  217 

James  v.  Christy,  18  Mo.  162        96 

-  v.  Richmond   &c.  Ry., 

92  Ala.  231  100,  145,  149 

Jamison  v.  San  Jose"  &c.  Ry., 

55  Cal.  593  156 

Jeffersonville  &c.  Ry.  v.  Hen- 
dricks,  41  Ind.  48  5,  109 

v.  Swayne,  26  Ind.  477 

103,  109 

Johnson  v.  Boston,  118  Mass. 
114  12 

-    v.    Boston    Tow-Boat 
Co.,  135  Mass.  209  28,  63 

-  v.  Lindsay,   [1891]  A. 

C.  371  65,  66,  93 

—  v.  Richmond  &c.  Ry., 

86  Va.  975  '8 

Johnston  v.  Canadian  Pacific 

Ry.,  50  Fed.  Rep.  188  139 

Joy  v.  Winnisimmet  Co.,  114 

Mass.  63  162 

Judson  v.  Giant  Powder  Co., 

107  Cal.  549  157 

Julia  Fowler,  The,  49  Fed. 

Rep.  277  154 

Kahl  v.  Memphis  &c.  Ry.,  95 

Ala.  337  195 

Kalleck  v.  Deering,  161  Mass. 

469  50,  154,  189 

Kansas  Central  Ry.  v.  Fitz- 

simmons,  18  Kans.  34  93 

Kansas  City  &c.  Ry.  v.  Burton, 

97  Ala.  240  3,  27,  57,  67, 

81 


TABLE    OF    CASES    CITED. 


387 


References  are  to  Sections. 


Kansas  City  &c.  Ry.  v.  Crock- 
er, 95  Ala.  412       72,  80,  81,  224 

v.   Sanders,   98    Ala. 

293  144 

—  v.  Smith,  90  Ala.  25        213 

—  ».  Webb,  97  Ala.  157 

89,  164 

Kansas  Pacific  Ry.  v.  Cranmer, 
4  Colo.  524  115 

v.  Cutter,  16  Kans.  568 

109 

v.    Peavey,    29    Kans. 

169  8 

v.   Twombly,   3  Colo. 

125  207 

Kearney  v.  Boston  &c.  Ry.,  9 

Cush.  108  % 
v.  London  &c.  Ry.,  L. 

R.  6  Q.  B.  759  157 

Keen  v.  Millwall  Dock  Co.,  8 

Q.  B.  D.  482  124,  125 

Keith  v.  New  Haven  &c.  RV-, 

140  Mass.  175  43,*  86,  88 

Kellard  v.  Rooke,  21  Q.  B.  D. 

367  54,  55,  60 

Kelley  v.  Boston  &  Maine  Ry., 

135  Mass.  448  4 
v.  Kelley,  161  Mass. 

111  219 
Kelly  v.  Abbot,  63  Wis.  307 

45,88 
v.  New  York,  11  N.  Y. 

432  93 

Kenady  v.  Lawrence,  128  Mass. 

318  127 

Kennedy  v.  Standard  Sugar 

Refinery,  125  Mass.  90  143 

Kenney  v.  Shaw,  133  Mass. 

501  50,  188 

Kent  v.  Whitney,  9  Allen,  62  234 
Kerrigan  v.  West  End  Ry., 

158  Mass.  305  156 

Kesler  v.  Smith,  66  N.  C. 

154  151 

Keystone  Bridge  Co.  v.  New- 
berry,  96  Pa.  St.  246  50,  78 
Kimball  v.  Cushman,  103  Mass. 

194  12 

King  v.  Boston  &c.  Ry.,  9  Cush. 

112  187 
Kingsbury  v.  Buckner,  134  U. 

S.  650  15 


Kirk   v.  Atlantic   &c.   Ry.,  94 

N.  C.  625  78 

Kirst  v.  Milwaukee  &c.  Ry.,  46 

Wis.  489  15T 

Kleinest  v.  Kunhardt,  160  Mass. 

230  182 

Knapp  v.  Abell,  10  Allen 

(Mass.),  485  219 

Knight  v.  Fox,  5  Exch.  721  93 

—  v.  West  Jersey  Ry.,  108 

Pa.  St.  250  191 

Kramer  v.  Market  Street  Ry., 

25  Cal.  434  96 

Ladd  v.  New  Bedford  Ry.,  119 

Mass.  412  29 

Lake  Shore  &c.  Ry.  v.  Laval- 
ley,  36  Ohio  St.  221  51 
Lamar  v.  Micou,  114  U.  S. 

218  220 

Lambert  v.  Craig,  12  Pick. 

199  153 

Lane  v.  Atlantic  Works,  107 

Mass.  104  156 

Lang  v.  Terry,  163  Mass.  138  211 
Langdon  v.  Potter,  11  Mass. 

313  109 

Laning  v.  New  York  Central 

Ry.,  49  N.  Y.  521  25 

Lavin  v.  Emigrant  Industrial 

Sav.  Bk.,  18  Blatch.  1  104 

Lawless  v.  Connecticut  River 

Ry.,  136  Mass.  1  22,  86,  121, 
164,  170 
Lawrence  v.  Nelson,  143  U.  S. 

215  109 

Lease  v.  Pennsylvania  Ry.,  10 

Ind.  App.  47  10 

Le  Barren  v.  East  Boston  Ferry 

Co.,  11  Allen,  312  157 

Le  Forest  v.  Tolman,  117  Mass. 

109  195 

Leonard  v.  Columbia  Steam 

Nav.  Co.,  84  N.  Y.  48  104, 

108,  193,  219 
Levesque  v.  Janson,  165  Mass. 

16  25 
Lewis  v.  Adams,  70  Cal.  403  110 
v.  Montgomery,  103 

Ala.  000  14 
i?.  New  York  &c.  Ry., 

153  Mass.  73  25 


388 


TABLE   OP   CASES    CITED. 


References  are  to  Sections. 


License    Tax  Cases,  5   Wall. 

462  8 

Liffin  v.  Beverly,   145    Mass. 

549  131 

Limekiller  y.  Hannibal  &c.  Ry., 

33  Kans.  83  109,  193,  199 

Linsley  v.  Bushnell,  15  Conn. 

225  152 

'Little  y.  Dusenberry,  46  N.  J. 

Law,  614  82 

Littlejohn    v.    Fitchburg   Ry., 

148  Mass.  478  144 

Little  Miami  Ry.  v.  Stevens,  20 

Ohio,  415  51,  79 

Little   Rock   &c.   Ry.  v.  Eu- 

banks,  48  Ark.  460  8 

Lord    v.    Steamship    Co.,   102 

U.  S.  541  196 

Lothrop  v.  Fitchburg  Railroad, 

150  Mass.  423  122,  182 

Loughlin  v.  State,  105  N.  Y. 

159  189 

Louisville  &c.  Ry.  v.  Allen,  78 

Ala.  494  29,  32,  50,  156, 
158,  205 
P.    Banks,     103    Ala. 

000  115,  180,  183 

v.  Binion,  98  Ala.  570       21, 

26,  159,  164,  204, 
205,  219 
v.    Boland,    96    Ala. 

626  186 
v.   Campbell,   97    Ala. 

147  29,  162,  165,  205 
v.  Caven,  9  Bush  (Ky.), 

559  78 
v.    Collins,    2    Duvall 

(Ky.),  114  51 
v.    Coulton,    86    Ala. 

129  21,  57,  222 

v.  Davis,  91  Ala.  487         21, 

44,  87,  230 

».  Hurt,  101  Ala.  34        115 

v.  Markee,  103  Ala. 

115, 171 
—  v.  Mothershed,  97  Ala. 

261  2,  79,  81,  211,  224,  226 

v.  Orr,  91  Ala.  548 

120,  145 

v.  Pearson,  97  Ala.  211 

37,  214 
•  v.  Richardson,  100  Ala. 

232  75,  79,  212 


Louisville  &c.  Ry.  v.  Robertson, 
9  Heisk.  276  78 

v.    Sanders,    86     Ky. 

259  136 

v.    Stutts,    104    Ala. 

000  171,  180,  182 

—  v.    Trammell,   93  Ala. 
350  115,  148,  149,  152, 

153,  225,  232 

—  v.  Watson,  90  Ala.  68       115 

—  v.    Woods,    104    Ala. 
000  122, 133,  134 

Lovejoy  v.   Boston   &  Lowell 

Ry.,  125  Mass.  79  183 

Lovell  v.  De  Bardelaben  Coal 

Co.,  90  Ala.  13  1,  105 

Lucas  v.  New  Bedford  &c.  Ry., 

6  Gray,  64  115 
v.  New  York  &c.  Ry., 

21  Barb.  (N.  Y.)  245  100 

Lyman  v.  Hampshire,  138 

Mass.  74.  128,  129 

Lynch  v.  Allyn,  160  Mass.  248        2, 

39,  40,  61,  116,  130, 

185,  188 

v.   Boston   &   Albany 

Ry.,  159  Mass.  536  116 

Lyon  v.  Cambridge,  136  Mass. 

419  130 

Lyons  v.  Cleveland  &c.  Ry.,  7 

Ohio  St.  336  100 

McAdory  v.  Louisville  &c.  Ry., 

94  Ala.  272  148, 149 

McAunich  v.  Mississippi  &c. 

Ry.,  20  Iowa,  338  85 

McCabe  v.  Cambridge,  134 

Mass.  484  130 

McCafferty  v.  Spuyten-Duvil 

&c.  Ry.,  61  N.  Y.  178  12,  93 
McCaim  v.  Waltham,  163  Mass. 

344  14 

McCarthy  r.  Chicago  &c.  Ry., 

18  Kans.  46  18,  108,  195 

v.  New  England  Order 


of     Protection,     153    Mass. 

314  111 

M'Carty  v.  New  York  &c.  Ry., 

62  Fed.  Rep.  437  105,  109 

McCauley  v.  Norcross,  155 

Mass.  584  59,  167 

McCord  v.  Thompson,  92  Ind. 

565  110 


TABLE    OF    CASES    CITED. 


389 


References  are  to  Sections. 


McDonald  v.  Chicago  &c.  Ry., 

26  Iowa,  124  218 

-  v.  Hovey,  110  U.  S. 

619  3 
v.  McDonald,  28  S.  W. 

Rep.  (Ky.)  482  191, 198 

-t>.  Mallory,  77  N.  Y. 

546  197 

McDowell  v.  Georgia  Ry.,  60 

Ga.  320  96 

McGiffin  v.  Palmer's  Shipbuild- 
ing Co.,  10  Q.  B.  D.  5  27 
McGinty  v.  Athol  Reservoir 

Co.,  155  Mass.  183  50,  63 

McGuerty  v.  Hale,  161  Mass. 

51  52,  211 

Mclntvre  v.  Boston  &  Maine 

Ry.,"  163  Mass.  189  23 

McKee  v.  Bid  well,  74  Pa.  St. 

218  201 

Mackin  v.  Boston  &  Albany 

Ry.,  135  Mass.  201  43,  45, 

88,  164,  192,  204 
McKinnon  v.  Norcross,  148 

Mass.  533  28,  50 

McLean  v.  Chemical  Paper  Co., 

165  Mass.  5  122,  172 

McLeod  v.  Connecticut  &c.  Ry., 

58  Yt.  727  191,  219 

McNamara  v.  Logan,  100  Ala. 

187  30,  171,  211,  221 

MeNulta  v.  Lochridge,  141  U. 

S.  327  83 

McPhee  t>.  Scully,  163  Mass. 

216  53,  59,  86,  170, 

175,  188 
Mad  River  &c.  Ry.  v.  Barber, 

5  Ohio  St.  541  51 

Madden  v.  Chesapeake  &c.  Ry., 

28  W.  Va.  610  78 

Madden  v.  Springfield,  131 

Mass.  441  130 

Maguire  v.  Fitchburg  Railroad, 

146  Mass.  379  116, 119, 

202,  206 
Maher  r.  Boston  &  Albany  Ry., 

158  Mass.  36  101,  118, 

206,  207 
Mahler  v.  Norwich  &c.  Co.,  35 

N.  Y.  352  197 

Mahoney  v.  Dore,  155  Mass. 

513    *  175,  182 


Mahoney  v.  New  York  &c.  Ry., 

160  Mass.  573  52,  166,  170 

Malcolm  v.  Fuller,  152  Mass. 

160  50, 63,  64,  188, 

200,209 
Mallory  v.  Burlington  &c.  Ry., 

53  Kans.  557  103 

Manchester  Bank  r.  Fellows, 

28  N.  H.  302  210 

Manhattan  Ins.  Co.  v.  Brough- 

ton,  109  U.  S.  121  231 

Marietta  &c.  Ry.  v.  Picksley, 

24  Ohio  St.  654  156 

Martin  v.  Baltimore  &c.  Ry., 

41  Fed.  Rep.  125  10 

Mary  Lee  Coal  Co.  v.  Cham- 
bliss,  97  Ala.  171  169,  186, 
207,  218,  233 
Maupay  v.  Holley,  3  Ala. 

103  226 

Max  Morris,  The,  137  U.  S.  1  154 
May  v.  Whittier  Machine  Co., 

154  Mass.  29  27,  227 

Mears  v.  Boston  &  Maine  Ry., 

163  Mass.  150  101,  169,  172 
Mellor  v.  Merchants'  Mum  it'. 

Co.,  150  Mass.  362  3,  175, 

184,  187 
Memphis  &c.  Ry.  v.  Askew,  90 

Ala.  5  21,  212 

v.    Graham,    94    Ala. 

545  242 

v.   Womack,   84  Ala. 

149  214 

Menard    v.    Boston   &   Maine 

Ry.,  150  Mass.  386  201 

Merchants'  Ins.  Co.  v.  Abbott, 

131  Mass.  397  234 

Merrill   v.  Hampden,   26  Me. 

234  16 

Miles  v.   Kaigler,   10   Yerger 

(Tenn.),  10  15 

v.  Lynn,  130  Mass.  398 

129,  130 
Milligan  v.  Wedge,  12  Ad.  & 

El.  737  68 

Millward   v.  Midland  Ry.,   14 

Q.  B.  D.  68  92 

Minneapolis    &c.   Ry.   v.  Em-      • 

mons,  149  U.  S.  364  85 

v.  Herrick,  127  U.  S. 

210  84 


390 


TABLE    OF    CASES    CITED. 


References  are  to  Sections. 


Missouri  Furnace  Co.  v.  Abend, 
107  111.  44  25 

Missouri  Pacific  Ry.  v.  Condon, 
17  Am.  &  Eng.  R.  R.  Cases, 
589  80 

v.  Haley,  25  Kans.  35 

3,84 

-  v.   Humes,  115  U.   S. 
512  84 

—  v.  Lewis,  24  Neb.  848     191 

-  v.  Mackey,  127  U.  S. 
205  84 

M.  Moxham,  The,  1  P.  D.  107    192 
Mobile  v.  Yuille,  3  Ala.  137  8 

Mobile  &c.  Ry.  v.  Ashcraf t,  48 
Ala.  15  152 

—  v.  George,  94  Ala.  199     91, 

141,  180,  211,  221,  241 

v.  Holborn,  84  Ala.  133     1, 

3,  13,  25,  113,  120, 
122,  175,  179 

v.  Smith,  59  Ala.  245        50 

v.  Thomas,  42  Ala.  672 

50,  158 
Moffatt  v.  Tenney,  17  Colo.  189 

150,  207 

Mohr  v.  Lemle,  69  Ala.  180       134 
Monaghau  v.  Horn,  7  Canada 

Sup.  Ct.  409  105 

Monahan    v.    Worcester,    150 

Mass.  439  200 

Moncan,  In  re,  14  Fed.  Rep. 

44  197 

Montgomery     v.    Wright,    72 

Ala.  411  156 

Moody    v.    Hamilton    Manuf. 

Co.,  159  Mass.  70  50,  189 

Mooney  v.  Connecticut  River 
Lumber  Co.,  154  Mass.  407 

28,  160 
Moran  v.  Rollings,  125  Mass. 

93  96 

Morgan  v.  London  Omnibus 
Co.,  13  Q.  B.  D.  832  5 

-  v.  Sears,  159  Mass.  570     12 

—  v.  Smith,  159  Mass.  570 

65,66 

Morris  v.  Chicago  &c.  Ry.,  65 
,  Iowa,  727  104,  191 

Morrison   v.  Baird,   10  Ct.   of 

Sess.  Gas.  (4th  Series)  271         86 
Morse  v.  Minneapolis  &c.  Ry., 

30  Minn.  465  201 


Morse  v.  Wood  worth,  155  Mass. 

233  238 

Moulton  v.  Gage,  138  Mass. 

390  181 

Moyle  v.  Jenkins,  8  Q.  B.  D. 

116  124,  125 

Moynihan  v.  Hills  Co.,  146 

Mass.  586  24,  159 

Mulcairns  v.  Janesville,  67 

Wis.  24  158 

Mullan  v.  Philadelphia  &c. 

Steamship   Co.,    78   Pa.   St. 

25  86 

Mullen  v.  St.  John,  57  N.  Y. 

567  157,  158 

Munos  v.  Southern  Pacific  Ry., 

51  Fed.  Rep.  188  140 

Murphy  v.  Collins,  121  Mass.  6  219 

-  v.   Deane,    101    Mass. 
455  16,  206 

—  v.  Holbrook,  20   Ohio 

St.  137  82 

v.  Lowell,   124  Mass. 

564  14 

—  v.  New  York  &c.  Ry., 

29  Conn.  496  152,  199 

—  v.  Webster,  151  Mass. 
121  170 

-  v.   Wilson,    52   L.    J. 

(Q.  B.)  524  71 

Murray  v.  Knight,  156  Mass. 
518  227 

Nalley  v.  Hartford  Carpet  Co., 
51  Conn.  524  201 

Nashville  &c.  Ry.  v.  Eakin,  6 
Coldw.  (Tenn.)  582  195 

—  v.     Foster,     10    Lea 
(Tenn.),  351  135,  195,  196 

—  v.  Jones,  9  Heisk.  27         78 
Nason  v.  West,  78  Me.  253          24, 

158,  159 

Nave  v,  Alabama  Great  South- 
ern Ry.,  96  Ala.  264  172 
Naylor  v.  Chicago  &c.  Ry.,  53 

Wis.  661  182 

Needham  v.  Grand  Trunk  Ry., 

38  Vt.  294  195 

Nelson  v.  Galveston  &c.   Ry., 

78  Tex.  621  106,  136 

Neveu  v.  Sears,  155  Mass.  303     30 
Noe  v.  Gibson,  7  Paige  (N.  Y.), 
513  83 


TABLE    OF    CASES    CITED. 


391 


References  are  to  Sections. 


Nonce  v.  Richmond  Co.,  33 
Fed.  Rep.  429  139 

Noonan  v.  Bradley,  9  Wall. 
394  109 

v.  Lawrence,  130  Mass. 

161  130 

Northern  Pacific  Ry.  v.  Bab- 
cock,  154  U.  S.  190  16,  18, 
191,  193,  198 

v.  Hambly,  154  U.  S. 

349  78 

v.  Hogan,  63  Fed.  Rep. 

102  17 

v.    Mares,  123  U.   S. 

710  207 

Norwood    v.    Somerville,    159 

Mass.  105  131 

Noyes  v.  Ward,  19  Conn.  250     199 

O'Brien  v.  Rideout,  161  Mass. 

170  53 

O'Connor  v.  Adams,  120  Mass. 

427  186 

v.  Neal,  153  Mass.  281 

27,53 
O'Keefe  v.  Brownell,  156  Mass. 

131  33,  58 

O'Kief  v.   Memphis   &c.   Ry., 

99  Ala.  524  133,  139 

Olson  v.  White,  124  Ind.  376  182 
O'Maley  v.  South  Boston  Gas 

Light  Co.,  158  Mass.  135      7,  32, 
49,  87,  174,  175,  181, 
182 
O'Neil  v.  O'Leary,  164  Mass. 

387  54, 63 

Osborne  v.  Jackson,  11  Q.  B.  D. 

619  60 

v.  Morgan,  130  Mass. 

102  47, 68 

O'Shields  v.  Georgia  Pacific 
Ry.,  83  Ga.  621  133,  137,  139 

Ouillette  v.  Overman  Wheel 
Co.,  162  Mass.  306  158,  211 

Owens  v.  Baltimore  &c.  Ry., 
35  Fed.  Rep.  715  10,  154 

Owings  v.  Hull,  9  Peters,  607     220 

Paige  v.  Smith,  99  Mass.  395  82 
Palfrey  v.  Portland  &c.  Ry.,  4 

Allen  (Mass.),  55  219 

Palys  v.  Jewett,  32  N.  J.  Eq. 

302  83 


Park  v.  O'Brien,  23  Conn.  339      16 
Parsons   v.   Charter   Oak  Ins. 

Co.,  31  Fed.  Rep.  305  110 

Patnode    v.     Warren     Cotton 

Mills,  157  Mass.  283        63,  185, 
186 
Patterson  v.  Pittsburg  &c.  Ry., 

76  Pa.  St.  389  25 

Patton  v.  Springfield,  99  Mass. 

627  234 

Peclerson  v.  Rushford,  41  Minn. 

289  183 

Pembina    Consolidated    Silver 

&  Mining  Co.  v.  Pennsylva- 
nia, 125  U.  S.  187  84 
Pendergast    v.     Clinton,     147 

Mass.  402  129,  130 

Pennsylvania  Co.  v.  Roy,  102 

U.  S.  451  147 

Pennsylvania   Ry.   v.  McClos- 

key,  23  Pa.  St.  526  111 
v.  Ogier,  35  Pa.  St.  60  156 

v.  Wachter,  60  Md.  395 

50,78 
Perkins  v.  Stickney,  132  Mass. 

217  241 

Perry  v.  Old  Colony  Ry.,  164 

Mass.  296  58,  69,  73,  167 

v.  St.  Joseph  &c.  Ry., 

29  Kans.  420  103,  105,  109 

Pettingell  v.  Chelsea,  161  Mass. 

368  14 

Philadelphia  &c.  Ry.  v.  Bitzer, 

58  Md.  372  12,  66 

Phillips  v.  Chicago  &c.  Ry.,  64 

Wis.  475  12,  66 

v.  Eyre,   L.    R.  6   Q. 

B.  1  137,  192,  195 

Pierce  v.  Conners,  20  Colo. 

178  150 

Pingree  v.  Leyland,  135  Mass. 

398  181 

Pittsburgh  &c.  Ry.  v.  Devin- 

ney,  17  Ohio  St.  197  51 
v.  Ruby,  38  Ind.  294  202 


Plank   v.   New   York    Central 

&c.  Ry.,  60  N.  Y.  607  183 

Posey  v.  Scoville,  10  Fed.  Rep. 

140  158 

Post  v.  Foxborough,  131  Mass. 

202  129 
v.  Toledo  &c.  Ry.,  144 

Mass.  341  219 


392 


TABLE    OF    CASES    CITED. 


References  are  to  Sections. 


Powell  v.    Pennsylvania,    127 

U.  S.  678  8 

Pratt   v.    Proutty,   153    Mass. 

333  186 

Prendible  v.  Connecticut  River 
Manuf.  Co.,  160  Mass.  131       35, 
41,  52,  185,  211, 
241 
Priestley   v.   Fowler,  3   M.   & 


W.  1 


187 


Probert  v.  Phipps,  149   Mass. 

258  186 

Purdy  v.  Rome  &c.  Ry.,  125 

N/Y.  209  8 


Quebec  Steamship  Co.  v.  Mer- 

chant, 133  U.  S.  375 
Quincy  Mining  Co.  v.  Kitts,  42 

Mich.  34 


78 
78 


Radley  v.  London  &c.  Ry.,  1 
App.  Cas.  754  115 

Railroad  Co.  v.  Barron,  5  Wall. 
90  111,  151 

-     v.     Fort,    17     Wall. 
553  186,  187 

v.  Gladmon,   15  Wall. 


401 


v.  Hanning,    15  Wall. 


16,  207 


649 

Railway   Co.   v.    Murphy,    50 
Ohio  St.  135 

—  v.    Spangler,   44   Ohio 
St.  471 

v.   Whitton,    13  Wall. 


12 
116 


270  16 

Ramsdell  v.  New  York  &c. 

Ry.,  151  Mass.  245  97,  142, 

149 
Randall  v.  Baltimore  &  Ohio 

Ry.,  109  U,  S.  478  78 

Raymond  v.  Danbury  &c.  Ry., 

43  Conn.  596  199 

Reagan  v.  Casey,  160  Mass. 

374  12 

Reed  v.  Boston  &  Albany  Ry., 


164  Mass.  129 


Regan  v.  Donovan,  159  Mass.  1 


24,  158 


42,  205 


Relfe   v.   Rundle,   103    U.   S. 

222  110 

Renaud  v.   Abbott,  116  U.  S. 

277  220 


Reynolds  v.  Boston   &  Maine 

Ry.,  64  Vt.  66  44 

Rice  v.  Merriniack  Co.,  56  N. 

H. 114  219 

Richardson  v.  Boston,  156  Mass. 
145  129,  130 

v.  New   York   Central 

Ry.,  98  Mass.  85        18,  108, 191, 
199 

Richmond  &c.  Ry.  v.  Bivins, 
103  Ala.  000;  15  So.  Rep. 
515  32,  121,  171 

-    v.    Farmer,    97    Ala. 

114,  153,  224 


141 


v.  Free,  97  Ala.  231         171 

—  v.   Hammond,  93  Ala. 
181  72, 145,  214 

—  v.    Hissong,    97    Ala. 

212,  218 


187 


v.  Jones,  92  Ala.  218          6, 

8,  122 

v.    Normont,    4   S.    E. 

Rep.  211  78 

—  v.  Thomason,   99  Ala. 
471  113,  171 

—  v.    Weems,    97     Ala. 
270  165,  228 

Reddlesbarger  v.  Hartford  Ins. 

Co.,  7  Wall.  386  136 

Riley  v.  Connecticut  River  Ry., 


135  Mass.  292 


96,  172 


Roberts  v.  Douglass,  140  Mass. 

129  130 

Robinson  v.  Atlantic  &c.  Ry., 

66  Pa.  St.  160  83 

Roderigas  v.  East  River  Sav. 

List.,  63  N.  Y.  460  104 

Roesner  v.  Herman,  8  Fed. 

Rep.  782  8 

Rogers  v.  De  Bardeleben  Coal 

Co.,  97  Ala.  154  208 

—  v.  Ludlow  Manuf.  Co., 

144  Mass.  198  22,  50,  51 

Rome  &c.  Ry.  v.  Chasteen,  88 

Ala.  591  93 

Romick  v.  Chicago  &c.  Ry.,  62 

Iowa,  167  115 

Rooney  v.  Sewall  Cordage  Co., 

161  Mass.  153  189 

Rose  v.  Stephens  Transporta- 
tion Co.,  11  Fed.  Rep.  438  157 
Roseback  v.  JStna  Mills,  158 

Mass.  379  55 


TABLE   OF   CASES   CITED. 


393 


References  are  to  Sections. 


Ross  v.  Pearson  Cordage  Co., 

164  Mass.  257  34,  159,  160 

Roughan  v.  Boston  Block  Co., 

161  Mass.  24  29 

Rouse  v.  Hornsby,  67  Fed. 

Rep.  219  82 

Ruloff  v.  People,  45  N.  Y. 

213  213 

Ryalls  v.  Mechanics'  Mills,  150 

Mass.  190  1,  3,  22,  86,  87,  227 
Ryan  v.  Cumberland  Valley 

Ry.,  23  Pa.  St.  384  78 

Ryder  v.  Kinsey,  59  Minn. 

000  157,  162 

St.  Louis  &c.  Ry.  v.  McCor- 
mick,  71  Texas,  660  18 

—  v.  Shackelford,  42  Ark. 
417  78 

v.   Weaver,   35   Kans. 

412  201 

Salt  Lake  Nat.  Bk.  v.  Hen- 
drickson,  40  N.  J.  L.  52  219 

Santa  Clara  County  t>.  South- 
ern Pacific  Railroad  Co.,  118 
U.  S.  394  84 

Sargent  v.  Lynn,  138  Mass. 
599  129 

Sauter  v.  New  York  Central 
Ry.,  66  N.  Y.  50  102,  218 

Savannah  &c.  Ry.  v.  Smith,  93 
Ga.  742  106 

Savory  v.  Haverhill,  132  Mass. 
324  127 

Sawyer  v.  Rutland  &c.  Ry., 
27  Vt.  370  66 

Scarborough  v.  Alabama  Mid- 
land Ry.,  94  Ala.  497  93 

Schlaff  v.  Louisville  &c.  Ry., 
100  Ala.  377  118,  211 

Schultz  v.  Chicago  &c.  Ry%,  44 
Wis.  638  116 

Schwartz  v.  Gilmore,  45  111. 
455  12 

Scott  v.  London  Docks  Co.,  3 
H.  &  C.  596  157 

v.  McNeal,  154  U.  S. 

34  104 

Scoville  v.  Canfield,  14  Johns. 
(N.  Y.)  338  194 

Seaboard  Manuf.  Co.  v.  Wood- 
son,  94  Ala.  143  ;  98  Ala. 
378  21,  24,  57,  152 


Seaver  v.  Boston  &  Maine  Ry., 
14  Gray,  466  78 

Seavey  v.  Central  Ins.  Co.,  Ill 
Mass.  540  38 

Selma  &c.  Ry.  v.  Lacy,  49  Ga. 
106  105,  135, 137,  195, 

199,  219 

Seymour  v.  Sturgess,  26  N.  Y. 
134  219 

Shaffers  v.  General  Steam  Nav- 
igation   Co.,   10   Q.   B.  D.  I 
356                                       55,60 

Shallow  v.   Salem,  136  Mass. 
136  129 

Shannv  r.  Androscoggin  Mills, 
66  Me.  420  86 

Sharpless  v.  Mayor,  21  Pa.  St. 
147  8 

Shea  v.  Boston  &  Maine  Ry., 
154  Mass.  31  16,  117,  206, 

229 

v.  Glendale    Co.,    162 

Mass.  463  216 

—  v.  Gurney,   163  Mass. 
184  12 

v.   Lowell,   132  Mass. 

187  130 

v.  Wellington,  163  Mass. 

364  37,  59, 159 

Sheffield  v.   Harris,   101  Ala. 

564  14, 53 

Shelby   County   v.   Scearce,   2 

Duvall  (Ky.),  576  85 

Shepard   v.    Boston    &   Maine 

Ry.,  158  Mass.  174  54,  55 

Sherlock   v.   Ailing,  93  U.   S. 

99  85,  197 

Shields  v.  Yonge,  15  Ga.349        96 
Shinners    v.    Proprietors,   154 

Mass.  168  201 

Short  v.  New  Orleans  &c.  Ry., 

69  Miss.  848  158 

Sicard  v.  Davis,  6  Peters,  124 

134 
Siddall   v.   Pacific  Mills,   162 

Mass.  378  186,  187 

Smith  v.  Baker,  [1891]  A.  C. 

325          165,  174,  175,  176,  177, 
180,  188,  325 

v.    Condry,     1    How. 

28  195 

v.   Flint  &c.  Ry.,  46 

Mich.  258  88 


394 


TABLE    OF    CASES    CITED. 


References  are  to  Sections. 


Smith  v.  Louisville  &c.  Ry.,  75 

Ala.  449  85 

—  v.  Redus,  9  Ala.  99  15 

Smoot  v.  Mobile  &c.  Ry.,  67 

Ala.  13  45,  80,  156 

Snow  v.  Housatonic  Ry.,  8  Al- 
len, 441  22,  25,  86,  183 
Soon  Hing  v.  Crowley,  113 

U.  S.  703  84 

South  Alabama  Ry.  v.  McLen- 

don,  63  Ala.  266  141,  152 

South  Carolina  Ry.  v.  Nix,  68 

Ga.  572  109, 135,  191, 

199 
Southern  Kansas  Ry  v.  Croker, 

41  Kans.  747  25 

Spaulding  v.  Flynt  Granite  Co., 

159  Mass.  587  43,  88,  122 

Speed  v.  Atlantic  &  Pacific  Ry., 

71  Mo.  303  12 

Spellmau  v.  Chicopee,  131  Mass. 

443  132 

Spencer  v.  Brockway,  1  Ohio, 

259  194 

Spicer  v.  South  Boston  Iron 

Co.,  138  Mass.  426  22,  29, 

159 
Spitze  v.  Baltimore  &c.  Ry.,  75 

Md.  162  10 

State  v.  Baltimore  &c.  Ry.,  36 

Fed.  Rep.  655  10 
v.  Gilmore,  4  Foster  (N. 

H.),  461  100 
v.  Knight,  Taylor  (N. 

C.)  65  194 

v.  Pike,  15  N.  H.  83  194 

v.  Pittsburgh  &c.  Ry., 

45  Md.  41  195 

Steele  v.  Burkhardt,  104  Mass. 

59  224 

Steffe  v.  Old  Colony  Ry.,  156 

Mass.  262  75,  77,  117,  190, 

203,  210,  223 
Stellar  v.  Chicago  &c.  Ry.,  46 

Wis.  497  47 

Stephenson  v.  Mansony,  4  Ala. 

317  153 

Stevenson  v.  Atlantic  Mail  Co., 

57  N.  Y.  108  66 

Stewart  v.  Louisville  &c.  Ry., 

83  Ala.  493  96,  105 

Stimpson  v.  Wood,  57  L.  J. 

Q.  B.  484  106 


Stockman  v.  Terre  Haute  &c. 

Ry.,  15  Mo.  App.  503  192 

Stokes  v.  Saltonstall,  13  Peters, 

181  157 

Stuart  v.  West  End  Ry.,  163 

Mass.  391  175,  184,  187 

Stuber  v.  McEntee,  142  N.  Y. 

200  98,  99 

Sullivan  v.  Fitchburg  Ry.,  161 

Mass.  125  182 

v.   India   Manuf.    Co., 

113  Mass.  396  186 

—  v.  Mississippi  &c.  Ry., 

11  Iowa,  421  78 

—  v.  Missouri  Pacific  Ry., 

97  Mo.  113  78 

v.  Old  Colony  Ry.,  153 

Mass.  118  122 

—  v.  Wamsutta  Mills,  155 
Mass.  200  31 

Svenson  v.  Atlantic  Mail  Co., 
57  N.  Y.  108  66 

Swainsou  v.  Northeastern  Ry., 
3  Ex.  Div.  341  68 

Swanson  v.  Lafayette,  134  Ind. 
625  185 

Sykora  v.  Case  Threshing  Ma- 
chine Co.,  58  Minn.  000  98 

Talmage  v.  Chapel,  16  Mass. 

71  110 

Tanner  v.  Louisville  &c.  Ry., 

60  Ala.  621  115 

Taylor  v.  Carew  Manuf.  Co., 

140  Mass.  150  156,  170,  233 

—  v.  Cranberry  Iron  Co., 

94  N.  C.  525  136 

v.  Pennsylvania  Ry.,  78 

Ky.  348  18,  193 

v.  Woburn,  130  Mass. 

494  127,  128,  130 

Telfer    v.    Northern    Ry.,   30 

N.  J.  L.  188  151 

Tennessee  Coal  Co.  v.  Hayes, 

97  Ala.  201  11,  15,  169 

-  v,  Herndon,  100  Ala. 

451  105,  107,  120,  155 

Terre  Haute  &c.  Ry.  v.  Clem, 

123  Ind.  15  201 

Terry  v.  Brightman,  129  Mass. 

535  229 

Texas  &c.  Ry.  v.  Grimes,  8 

Texas  Civ.  App.  000  134 


TABLE    OF    CASES    CITED. 


395 


References  are  to  Sections. 


Texas  &  Pacific   Ry.  v.   Cox, 
145  U.  S.  593         17,  18,  83,  134, 
191,  193 

-  v.  Richards,  68  Texas, 
375  18 

-  v.  Volk,  151  U.  S.  73       1C, 

207 
Thain  v.  Old  Colony  Ry.,  161 

Mass.  353  183 

Therough  v.   Northern  Pacific 

Ry.,  64  Fed.  Rep.  84  138 

Thomas  v.  East  Tennessee  &c. 
Ry.,  63  Fed.  Rep.  420  106 

-    v.    Quartermaine,    18 
Q.  B.  D.  685      13,  175,  177,  178, 
180,  184 

—  v.  Western  Union  Tel. 
Co.,  100  Mass.  156  157 

Thompson  v.  Boston  &  Maine 
Ry.,  153  Mass.  391  170, 171,  203 

-  v.    Louisville  Ry.,   91 
Ala.  496  102 

Thornburg  v.  American  Straw- 
board  Co.,  141  Iiid.  000  106 
Thyng  v.  Fitchburg  Ry.,  156 

Mass.  13  45,  55,  76,  88,  119, 
168,  172,  206 
Toledo  &c.  Ry.  v.  Moore,  77 

111.  217  158 

Toomey  v.  Donovan,  158  Mass. 

232  11,  93,  94,  181 

Toy  v.  United  States  Cartridge 

Co.,  159  Mass.  313  22,  24,  159 
Trask  v.  Old  Colony  Ry.,  156 

Mass.  298  46,  47 

Tremblay  v.  Harnden,  162 

Mass.  383  216,  236 

Tripp  v.  Gifford,  155  Mass. 

108  15 

Tuck  v.  Louisville  &c.  Ry.,  98 

Ala.  150  26,  159,  165 

Tucker  v.  Dabbs,  12  Heisk. 

(Tenn.)  18  15 

Turner  ».  Cross,  83  Tex.  218  82 
Twomey  v.  Swift,  163  Mass. 

273  211 

Tyndale  v.  Old  Colony  Ry., 

156  Mass.  503     16,  172,  206,  207 

Udderzook  v.  Commonwealth, 
76  Pa.  St.  340  213 

Ufford  v.  Spaulding,  156  Mass. 
65  219 


Union   Manuf.  Co.  v.  Morris- 
^  sey,  40  Ohio  St.  148  25 

Union   Pacific   Ry.   v.   Wyler, 

158  U.  S.  285  135 

United    States   v.    Latrop,    17 

Johns.  (N.  Y.)  4  194 

United  States  Rolling  Stock  v. 

Weir,  97  Ala,  396  24,  35 

Usher  v.  West  Jersey  Ry.,  126 

Pa.  206  199 

Vawter  v.  Missouri  Pacific  Ry., 

84  Mo.  679  192,  193 

Veginan  v.  Morse,  160  Mass. 

143  124 

Veno  v.  Waltham,  158  Mass. 

279  131 

Vera  Cruz,  The,  10  App.  Cases, 

58  20 

Vicksburg  &c.  Ry.  v.  Putnam, 

118  U.  S.  545  218 

Vincennes  Water  Co.  v.  White, 

124  Ind. 376  93,  182 

Volkmar  v.  Manhattan  Ry., 

134  N.  Y.  418  157,  162 

Wabash    Ry.    v.     McDaniels, 

107  U.  S.  454  86 

Wakelin  v.  London  &c.  Ry.,  12 
.    App.  Cases,  41  159 

Walker   v.    Boston    &    Maine 

Ry.,  128  Mass.  8  60 

—  v.  Chicago  &c.  Ry.,  71 

Iowa,  658  157 

Walsh  v.  New  York  &c.  Ry., 

160  Mass.  571  88,  192,  193, 

219 

—  v.  Whiteley,  21  Q.  B.  D. 
371  24 

Ward     v.    Jenkins,    10    Met. 
(Mass.)  583  194 

—  v.  New  England  Fibre 
Co.,  154  Mass.  419  12 

Warden  v.  Louisville  &c.  Ry., 

94  Ala.  277  203 

Waring  v.  Clarke,  5  How. 

441  197 

Water  Co.  v.  Ware,  16  Wall. 

566  12 

Weblin  v.  Ballard,  17  Q.  B.  D. 

122  25,  34,  113,  177 

Welch  v.  Gardner,  133  Mass. 

529  129,  130 


396 


TABLE    OF    CASES    CITED. 


References  are  to  Sections. 


Westcott  v.  New  York  &c.  Ry., 

153  Mass.  460  25 

Western  &c.  Ry.  v.  Bishop,  50 

Ga.  465  8 

Western  Ry.  v.  Mutch,  97  Ala. 

194  233 

Whaalon  v.  Mad  River  &c. 

Ry.,  8  Ohio  St.  249  51 

White  v.  Boston  &  Albany  Ry., 

144  Mass.  404  157,  166 

Whitford  v.  Panama  Ry.,  23 

N.  Y.  465  195,  219 

Whitman  v.  Groveland,  131 

Mass.  553  130,  230 

Whittaker  v.  Delaware  &c.  Ry., 

126  N.  Y.  544  86 

Wilcox  Silver  Plate  Co.  v. 

Green,  72  N.  Y.  17  219 

Wild  v.  Waygood,  [1892]  1  Q. 

B.  783  11,  66,  92 

Willetts  v.  Watt,  [1892]  2  Q. 

B.  D.  92  35,  37 

Williams  v.  South  &  North 

Alabama  Ry.,  91  Ala.  635  105, 
146, 186 
Willis  v.  Missouri  Pacific  Ry., 

61  Texas,  432  18,  195 

Wilson  v.  .ZEtna  Ins.  Co.,  27 

Vt.  99  136 
v.  Louisville  &c.  Ry., 

85  Ala.  269  23,  32,  113 
v.  Merry,  L.R.  1  H.  L. 

Sc.  326  22,  49,  50,  51, 

187 


Wilson  v.  Steel  Edge  Stamping 

Co.,  163  Mass.  315  120,  186 
v.  Tremout  &  Suffolk 

Mills,  159  Mass.  154  182 

Winterbottom    v.    Wright,  10 

M.  &  W.  109  68 

Wisconsin  v.  Pelican  Ins.  Co., 

127  U.  S.  265  194 

Wolbrecht  v.  Baumgarten,  26 

111.  291  235 

Wood    v.    Locke,    147    Mass. 

604  187 

Woodard  v.   Michigan   South- 
ern Ry.,  10  Ohio  St.  121 

18,  108 
Wooden  v.  Western  New  York 

&c.  Ry.,  126  N.  Y.  10     109, 198, 
199,  219 
Worley  v.  Cincinnati  &c.  Ry., 

1  Handy  (Ohio),  481  96 

Wright  v.  New  York  Central 

Ry.,  25  N.  Y.  562  24 

Yarmouth  v.  France,  19  Q.  B. 

D.  647  5,  35,  37,  86, 175,  177 
Young  v.  Bransford,  12  Lea 

(Term.),  232  157 
v.  Douglass,  157  Mass. 

383  130 

Zealy  v.  Birmingham  Ry.,  99 

Ala.  579  225 

Zeigler  v.  Day,  123  Mass.  152      50, 

62,  58,  189 


INDEX. 


References  are  to  Sections. 
ACCIDENT. 

Nature  of  accident : 

fall  of  painters'  hanging-stage,  26. 

tipping  of  mason's  stage,  27. 

breaking  apart  of  freight  train,  28,  161. 

breaking  of  brake-rod  of  train,  29. 

"  spragging  "  car-wheels  in  narrow  mine-entry,  30. 

cleaning  gears  of  carding-machine,  31. 

cleaning  calico-printing  machine,  92. 

falling  into  unguarded  ditch,  33. 

uncoupling  cars  in  motion,  33,  81,  91,  117,  120. 

coupling  cars,  115,  122,  164. 

open  switch  without  lock,  34. 

automatic  starting  of  machinery,  34,  160. 

fan  of  wall  of  old  house,  34,  40,  162. 

kick  of  horse,  35. 

falling  off  narrow  plank-walk,  35. 

fall  of  staging  used  to  pile  wood,  35. 

falling  into  catchpit  in  floor,  35. 

caving  in  of  bank  of  earth,  39. 

falling  downstairs,  42. 

foreign  car,  43,  44,  45,  87. 

blasting  rock  at  quarry,  50. 

fall  of  derrick,  50. 

object  falling  down  hold  of  vessel,  55. 

starting  of  loom  by  weaver,  55. 

caving  in  of  trench,  56,  166. 

fall  of  pile-driver  hammer,  59. 

fall  of  bale  of  hay,  59. 

dynamite  explosion  in  quarry,  59. 


398  INDEX. 

References  are  to  Sections. 
ACCIDENT,  continued. 

scalding  by  steam  from  locomotive,  79. 

defective  brake  in  foreign  freight-car,  87. 

fall  of  window-frames,  92. 

fall  of  plank,  92. 

brakeman  knocked  off  car  by  bridge,  101,  118. 

poison  as  a  concurring  cause  of  death,  102. 

brakeman  struck  by  supply-pipe  of  water-tank,  113. 

fall  of  bridge  during  great  flood,  113. 

collision  of  train  with  hand-car,  115. 

track-repairer  run  down  by  train,  116. 

fall  from  bridge,  119. 

boarding  train  in  motion,  121. 

fall  of  shafting  and  pulleys,  158. 

fall  of  roof  of  building,  158. 

fall  of  cistern  wall,  158. 

breaking  of  cartridge  punch,  159. 

breaking  of  spliced  rope,  159. 

collapse  of  locomotive  crown-sheet,  159. 

cleaning  machinery,  31,  92,  160. 

landing  from  ferry-boat,  162. 

breaking  of  brake-rod,  164. 

breaking  of  wooden  lever,  165. 

separating  of  freight  train,  165,  168. 

breaking  of  gudgeon-pin  of  derrick,  165. 

fall  of  burlaps  from  wagon,  166. 

fall  of  dredge-stone  from  staging,  167. 

fall  of  beam,  16.7. 

starting  train  suddenly,  168. 

running  into  open  switch,  169. 
Miscellaneous  points  : 

fatal  injuries,  95-112. 

notice  of  accident,  123-132. 

accident  outside  State  of  process,  effect  of  amendment  under 
statute  of  limitations,  135. 

defensive  explanation  of  accident,  162. 
ACTIONS, 

against  municipal  corporations  by  employees,  14. 

federal  courts,  actions  in,  under  statute,  16. 


INDEX.  399 

References  are  to  Sections. 
ACTIONS,  continued. 

under  Employees'  Liability  Acts  are  transitory,  16. 

admiralty  courts,  actions  in,  under  statute,  20. 

actions  for  fatal  injuries,  95-112.     See  DEATH. 

survival  of  action  when  death  is  not  instantaneous,  97. 

survival  of  action  when  death  is  instantaneous,  99. 

action  by  "  dependent "  in  Massachusetts,  112. 

action   by   executor   or  administrator,  97,  105,  106,  108- 

110. 

action  by  next  of  kin,  99,  106. 
ADMINISTRATION, 

claim  for  damages  as  ground  for  granting  administration  on 

estate  of  deceased  employee,  103,  104. 
administration  on  estate  of  living  person  void,  104,  note. 
ADMINISTRATOR.     See  EXECUTOR  AND  ADMINISTRATOR. 
ADMIRALTY  COURTS, 

suit  in,  under  Employers'  Liability  Act,  20. 
division  of  damages  in,  when  employee's  negligence  contrib- 
utes to  injury,  154. 

jurisdiction  wherever  public  navigation  extends,  197. 
no  action  for  death  in,  without  express  statute,  197. 
AMENDMENT, 

setting  up  new  cause  of   action  after  statute  of  limitations 

has  run,  134,  135. 

right  to  amend  governed  by  lex  fori,  even  when  injury  oc- 
curred in  another  State,  199. 
amending  bill  of  exceptions  after  time  for  filing  has  expired, 

237. 

ASSUMPTION  OF  RISK.     See  JURY. 
When  prevents  recovery  by  employee  : 

obvious  danger,  known  to  and  appreciated  by  employee,  181, 

182,  183,  184. 

falling  into  breweiy  vat,  177. 
falling  off  coal-run  without  guards,  181. 
using  unguarded  machine,  181. 
using  high  and  short  railroad  trestle,  182. 
coupling  cars  having  double  buffers,  183. 
work  outside  of  ordinary  duty,  184. 


400  INDEX. 

References  are  to  Sections. 
ASSUMPTION  OF  RISK,  continued. 

When  does  not  prevent  recovery  by  employee : 

defects  explicitly  prohibited  by  statute,  74,  178. 
danger  not  understood  or  appreciated,  185,  186. 
working  under  stone-crane,  176. 
driving  vicious  horse,  177. 
hidden  or  concealed  danger,  183. 
young  and  inexperienced  employees,  185,  186. 
Miscellaneous  points : 

common-law  rules  respecting  defects  in  ways,  works,  etc.,  not 

changed  by  Employers'  Liability  Acts,  174. 
common-law  rules  respecting  negligence  of  superintendent  and 
of  person  in  charge  or  control,  abolished  by  Employers' 
Liability  Acts,  174,  188,  190. 
contributory  negligence  is  a  different  defence,  175. 
due  care  of  plaintiff  does  not  prevent  application  of  doctrine 

of  assumption  of  risk,  175,  184. 

whether  doctrine  is  founded  on  public  policy  or  implied  con- 
tract, 187. 

doctrine  does  not  apply  to  negligence  of  a  superintendent,  188. 
nor  to  negligence  of  person  in  "  charge  or  control "  of  cer- 
tain railroad  appliances,  190. 
doctrine  applies  to  defects  in  ways,  works,  etc.,  which  are 

known  to  and  the  danger  appreciated  by  employee,  174. 
ATTORNEY, 

power  of  employee's  attorney  to  sign  notice  of  injury,  132. 

BURDEN  OF  PROOF, 

plaintiff  must  show  due  care  in  Massachusetts,  119, 172, 173, 

206. 

inference  of  due  care,  when  may  arise,  119. 
defendant  must  show  contributory  negligence  in   Alabama, 

173,  207. 

plaintiff  must  prove  employer's  negligence,  205. 
infancy  of  plaintiff,  208. 

CAR.     See  FOREIGN  CAR  ;  LOCOMOTIVE  ;  RAILROADS. 
charge  or  control  of  car,  72,  80. 
statutory  defects  in  freight-cars,  74. 


INDEX.  401 

References  are  to  Sections. 
CAR,  continued. 

foreign  car,  43,  44,  45. 

negligence  of  person  in  charge  or  control  of  hand-car,  102. 
CHARGE  OR  CONTROL, 

applies  only  to  railroads  and  their  employees,  69. 

charge   or  control   does   not  render  person   a   superintend- 
ent, 55. 

temporary  charge  or  control  sufficient  in  Massachusetts,  75. 

general  charge  or  control  required  in  England,  75. 

the  charge  or  control  necessary  to  liability,  76. 

charge  or  control  of  train,  76,  168,  169. 

conductor  may  have,  while  temporarily  absent,  76. 

brakeman  acting  under  supervision  of  conductor  is  not  in 
charge  or  control,  76. 

brakeman  may  have  charge  or  control  of  train,  77. 

capstan-man  may  have  charge  or  control  of  train,  77. 

common-law  rules  concerning  person  in  charge  or  control  of 
train,  78. 

charge  or  control  of  locomotive,  79,  168. 

charge  or  control  of  car,  80,  169. 

'negligence  of  person  in  charge  or  control,  81. 

charge  or  control  of  switch,  169. 
COMMON  EMPLOYMENT, 

defence  of,  abolished  in  certain  cases  by  Employers'  Liability 
Acts,  13. 

common  employment  by  different  masters,  no  defence,  65. 
COMMON  LAW, 

changed  in  various  respects  by  Employers'  Liability  Acts  in 
favor  of  employees,  1,  2. 

rules  as  to  exempting  employer  from  liability  for  negligence, 
8,  9,  10. 

changed  by  making  employer  liable  for  superintendent's  neg- 
ligence, 48-51. 

rules  as  to  defects  in  ways,  works,  machinery,  or  plant,  21- 
35. 

rules  as  to  fellow-servants  on  railroads,  78.  79,  80. 

negligence  of  person  entrusted  with  duty  of  seeing  that  ways, 
works,  etc.,  are  in  proper  condition,  86-90. 

employee's  common-law  rights  not  restricted  by  Employers' 
Liability  Acts,  1,  87. 


402  INDEX. 

References  are  to  Sections. 
COMPENSATION.     See  DAMAGES. 
CONFLICT   OF   LAWS. 

When  law  of  sister  State  will  be  enforced : 

inspection  of  foreign  cars,  88. 

limitation  of  actions,  137,  138,  139. 

personal  injury  received  in  sister  State,  191,  192. 

though  State  of  process  affords  no  remedy,  192,  193. 

when  not  penal  in  nature,  194. 

limit  of  damages,  198. 

distribution  of  damages,  198. 

person  entitled  to  sue,  199. 
When  law  of  sister  State  will  not  be  enforced: 

limitation  of  actions,  137-140. 

when  contrary  to  public  policy  of  State  of  process,  193. 

when  penal  in  nature,  194. 

limit  of  damages,  198. 

matters  of  procedure,  199. 

exemplary  or  vindictive  damages,  199. 

person  entitled  to  sue,  199. 
Miscellaneous  points : 

injury  caused  and  received  in  State  having  no  statute,  195. 

negligence  in  one  State  causing  injury  in  another  State,  196. 

negligence  on  navigable  waters,  197. 
CONSTITUTIONAL  LAW, 

discrimination  against  railroad'employers,  84,  85. 

non-resident's  right  to  sue  for  personal  injuries,  5. 

Congress  has  power  to  pass  Employers'  Liability  Act  affect- 
ing interstate  railroads  and  their  employees,  196. 

administration   on   estate  of   living  person    is   void,  though 

allowed  by  state  statute,  104,  note. 
CONSTRUCTION, 

Employers'  Liability  Acts  construed  liberally,  1. 

rules  of  construction  in  Massachusetts,  Alabama,  and  Eng- 
land, 1. 

prior  construction  of  other  State,  when  followed,  3. 

no  retrospective  operation  of  Employers'  Liability  Acts,  4. 

Employers'  Liability  Acts  apply  to  what  classes  of  employ- 
ees, 5. 

contracting  out  of  the  statute  allowed  in  England,  6. 


INDEX.  403 

References  are  to  Sections. 
CONSTRUCTION,  continued. 

not  allowed  in  United  States,  6,  7. 
waiving  benefit  of  statute,  6,  7. 

CONTRIBUTORY   NEGLIGENCE.     See    NEGLIGENCE;    DUE 
CARE  OF  EMPLOYEE. 

chapter  on  contributory  negligence,  113-122. 
contributory  negligence  is  a  defence  in  actions  under  Em- 
ployers' Liability  Acts,  113. 
illustrations  of,  113,  122. 

exposure  to  sudden  and  imminent  danger,  114. 
employee's  dangerous  position  known  to  defendant's  responsi- 
ble employees,  115. 

contributory  negligence  not  always  a  defence,  115. 
warning  from  person,  when  employee  may  rely  upon,  116, 

117. 

warning  from  object,  when  employee  may  rely  upon,  118. 
inference  of  due  care,  when  may  arise,  119. 
selecting  dangerous  way  when  safe  way  exists,  120,  121. 
crossing  railroad  track,  122. 
coupling  cars,  122. 
plaintiff's  negligence  after  injury  does  not  prevent  recovery, 

154. 

employee's  knowledge  of  defect  or  of  negligent  act,  25. 
pleading  contributory  negligence,  224. 
waiving  plea  of  contributory  negligence,  224. 
CORPORATIONS, 

municipal  corporations,  when  liable  under  Employers'  Liabil- 
ity Acts,  14. 
COURTS.     See  FEDERAL  COURTS  ;  ADMIRALTY  COURTS. 

DAMAGES, 

measure  of  damages,  141-155. 

when  belong  to  widow  or  next  of  kin,  97,  99,  100. 

when  assets  of  estate  of  deceased  employee,  97,  100. 

claim  for  damages  as  ground  for  administration,  103,  104. 

limit  of  damages  under  Employers'  Liability  Acts,  141,  142, 
143,  148. 

married  woman's  right  to  recover  damages  for  personal  in- 
juries, 141. 


404  INDEX. 

References  are  to  Sections. 

DAMAGES,  continued. 

"  assessed  with  reference  to  the  degree  of  culpability,"  144. 

when  there  is  a  series  of  negligent  acts,  144. 

limited  to  pecuniary  loss  in  Alabama,  145. 

age,  health,  strength,  capacity  to  earn  money,  etc.,  as  ele- 
ments of  damage,  147. 

when  deceased  employee  is  a  minor,  146. 

when  deceased  leaves  a  widow,  or  dependent  next  of  kin, 
148. 

when  deceased  leaves  no  widow,  nor  dependent  next  of  kin, 
149. 

Colorado  rules,  150. 

exemplary  or  punitive  damages,  152. 

excessive  damages,  how  reduced,  153. 

division  of  damages  when  employee's  negligence  contributes 
to  injury,  154. 

remote  or  conjectural  damages,  155. 
DEATH  (injuries  resulting  in), 

attributes  peculiar  to  fatal  injuries,  95-112. 

no  action  for  death  at  common  law,  96. 

action  for  death  allowed  by  statute,  96. 

survival  of  action  when  death  is  preceded  by  conscious  suffer- 
ing, 97. 

survival  of  action  when  death  is  not  instantaneous,  97. 

legal  representative  may  sue,  when,  97. 

release  by  widow,  98. 

release  by  next  of  kin,  98. 

survival  of  action  when  death  is  instantaneous,  99. 

survival  of  action  when  death  is  without  conscious  suffering, 
99. 

damages,  when  assets  of  the  estate,  97,  100. 

damages,  when  belong  to  widow  or  next  of  kin,  97,  99,  100. 

instantaneous  death,  what  evidence  will  justify  a  finding  of, 
101. 

what  evidence  will  warrant  a  finding  of  death  without  con- 
scious suffering,  101. 

concurring  causes  of  death,  for  one  of  which  defendant  is  not 
responsible,  102. 

claim  for  damages  as  ground  for  administration,  103,  104. 


INDEX.  405 

References  are  to  Sections. 
DEATH,  continued. 

who  may  sue  for  employee's  death,  105,  106. 

when  executor  or  administrator  may  sue,  97,  105,  106. 

when  next  of  kin  may  sue,  99,  106. 

domestic  administrator's  right  to  sue  for  injury  received  in 

another  State,  108. 

foreign  administrator's  right  to  sue,  109,  110. 
who  are  "  dependent "  upon  deceased  employee,  111. 
action  hy  dependent  in  Massachusetts,  112. 
action  in  Admiralty  Court  for  death,  197. 
DEFECT, 

in  ways,  works,  machinery,  or  plant,  21-35. 

"defect  in  condition"  clause,  effect  of,  in  Massachusetts, 

22. 

effect  of  same  clause  in  Alabama,  23. 
actual  or  presumptive  knowledge  of  defect  necessary  to  fix 

liability,  24. 

employee's  knowledge  of  defect,  25. 
must  be  proximate  cause  of  accident,  26. 
accidental  obstruction  not  a  defect,  27. 
temporary  obstruction  not  a  defect,  27. 
pile  of  rubbish  not  a  defect,  27. 

defect  must  exist  in  permanent  condition  of  ways,  etc.,  27. 
heavy  ball  in  roadway  not  a  defect,  27. 
pile  of  small  pieces  of  wood  not  a  defect,  27. 
stone  on  staging  not  a  defect,  27. 

railroad  car  left  dangerously  near  track  not  a  defect,  27. 
proper  tools,  etc.,  within  reach  of  employee  who  is  injured 

by  using  defective  tool,  etc.,  28. 

mere  breaking  of  wooden  lever  does  not  prove  defect,  28. 
latent  defect,  employer  not  liable  for,  29. 
hidden  danger  in  nature  of  trap,  employer  liable  for  in  ways, 

etc.,  30. 

defect  not  causing  injury,  31. 

machinery  need  not  be  the  safest  or  best  known  in  use,  32. 
absence  of  guard  or  other  safety  appliance  may  or  may  not 

be  a  defect,  33. 
unguarded  ditch  in  railroad  track  may  be  a  defect  in  the 

ways,  33. 


406  INDEX. 

References  are  to  Sections. 
DEFECT,  continued. 

absence  of  blocking  appliance  on  truck,  when  not  a  defect,  33. 

absence  of  grab-iron  on  freight-car,  when  a  defect,  33. 

absence  of  hooks  or  stays  on  ladder,  when  a  defect,  34. 

absence  of  switch-lock,  34. 

absence  of  lock  on  shifting-bar  of  machine,  34. 

failure  to  shore  up  wall  of  old  house  in  process  of  demolition, 
34. 

kicking  habit  of  horse  may  be  a  defect,  35. 

narrow  plank  used  as  a  walk  may  be  a  defect,  35. 

staging  insecurely  fastened,  35. 

uncovered  catchpit  in  floor,  35. 

tell-tale  or  whip-straps  near  railroad  bridge,  118. 

lateral  motion  of  draw-bars,  164. 
DEFENSIVE  EXPLANATION  OF  ACCIDENT, 

definition  and  illustrations,  162. 

latent  defect,  162. 

jury  may  disregard  explanation  offered  by  defendant,  162. 
DEPENDENTS, 

who  are  "  dependent "  upon  employee,  111. 

actions  by  dependents  in  Massachusetts,  112. 

when  entitled  to  damages  for  death  of  employee,  97,  99, 100. 
DIRECTING  VERDICT.     See  JUKY. 

DUE    CARE   OF  EMPLOYEE.     See   CONTRIBUTORY   NEGLI- 
GENCE. 

federal  courts'  rules  upon,  16. 

Massachusetts  state  courts'  rules  upon,  16. 

knowledge  of  defect  or  negligent  act,  25. 

inference  of  due  care,  when  may  arise,  119. 
DUE  PROCESS  OF  LAW, 

administration  on  estate  of  living  person  is  contrary  to  due 
process  of  law  and  void,  104,  note. 

ELECTION, 

between  counts  under  Employers'  Liability  Acts,  226. 
between  statutory  and  common-law  counts,  227. 
EMPLOYEES, 

rights  under   Employers'  Liability  Acts  may  be  greater  or 
less  than  at  common  law,  2. 


INDEX.  407 

References  are  to  Sections. 
EMPLOYEES,  continued. 

what  classes  entitled  to  benefit  of  statute,  5. 

Alabama  and  Colorado  statutes  apply  to  all  classes,  5. 

Massachusetts  statute  applies  to  all  classes  except  domestic 
servants  and  farm  laborers,  5. 

Indiana  statute  applies  merely  to  employees  of  railroads  and 
corporations,  5. 

English  statute  applies  to  railway  employees,  and  to  per- 
sons included  in  the  Employers  and  Workmen  Act, 
1875,  5. 

may  waive  benefit  of  statute  in  England,  6. 

contract  of  waiver  not  binding  in  United  States,  6,  7. 

minor  employee  not  bound  by  release  of  damages  by  par- 
ent, 9. 

"  relief  fund  "  agreement  of  employee  not  to  sue  employer, 

10. 
when  binding  on  minor  employee,  10. 

"  as  if  employee  had  not  been  in  the  service  of  the  em- 
ployer," 13. 

actions  against  municipal  corporations,  14. 

knowledge  of  defect  or  negligent  act,  25. 

right  to  recover  for  superintendent's  negligence,  48-67. 

employee  liable  to  co-employee  for  negligence,  68. 

railroad  employees  have  greater  rights  than  other  employees, 
69-85. 

employees  of  independent  contractor,  11,  12,  93,  94. 

notice  signed  by  employee's  attorney,  132. 
EMPLOYER  AND  EMPLOYEE, 

relation  of,  must  exist,  to  sue  under  Employers'  Liability 
Acts  generally,  11,  12. 

employee  of  independent  contractor  may  sue  under  statutes 
of  Massachusetts  and  Colorado,  11. 

name  of  plaintiff  on  pay-roll  of  defendant  not  essential,  11. 

one  casual  service  not  sufficient  to  establish  relation  of,  12. 
EMPLOYERS, 

duty  to  furnish  proper  appliances,  etc.,  86. 

duty  to  provide  competent  co-employees,  86. 

repairs  made  after  accident,  201. 

alleging  employer's  knowledge  of  defect,  222. 


408  INDEX. 

References  are  to  Sections. 
EMPLOYERS'  LIABILITY  ACTS, 

liberally  construed  in  favor  of  employees,  1. 

rules  of  construction  in  Massachusetts,  Alabama,  and  Eng- 
land, 1. 

employee's  rights  under,  may  be  greater  or  less  than  at  com- 
mon law,  2. 

prior  construction  of  other  State,  when  followed,  3. 

no  retrospective  operation,  4. 

apply  to  what  classes  of  employees,  5. 

contracting  out  of  the  statute  allowed  in  England,  6. 
not  allowed  in  United  States,  6,  7. 

waiving  benefit  of  statute,  6,  7. 

minor  employee,  when  bound  by  "  relief  fund "  agreement 
not  to  sue  employer,  10. 

relation  of  employer  and  employee  must  exist  to  maintain 
action  under  statute,  11,  12. 

independent  contractor,  employee  of,  may  sue  under  statutes 
of  Massachusetts  and  Colorado,  11. 

"as  if  employee  had  not  been  in  the  service  of   the  em- 
ployer," 13. 

defects  in  ways,  works,  machinery,  or  plant,  21-35.     See 
DEFECTS. 

employer's  knowledge  of  defect,  24. 

employee's  knowledge  of  defect,  25. 

superintendent's  negligence,  48-67.  • 

railroads  and  their  employees,  69,  85. 

negligence  of  person  entrusted  with  duty  of  seeing  that  ways, 
works,  etc.,  are  in  proper  condition,  86-90. 

negligence  of  person  to  whose  orders  plaintiff  was  bound  to 
conform,  91,  92.  * 

injury  to  employee  of  independent  contractor,  93,  94. 

defence  of  contributory  negligence  not  abolished  by,  113. 

notice  of  time,  place,  and  cause  of  injury,  123-132.     See 
NOTICE. 

limitation  of  actions,  133-140.    See  LIMITATION  OF  ACTIONS. 

not  penal  laws  in  international  sense,  194. 

apply  only  to  injuries  received  in  State,  195. 

apply  not  to  injuries  received  elsewhere,  195. 


INDEX.  409 

References  are  to  Sections. 
EVIDENCE, 

chapter  relating  to,  200-220. 

fellow-servant's  reputation  for  incompetency,  200. 

repairs  made  by  employer  after  accident,  201. 

previous  specific  acts  of  negligence,  202. 

customary  negligence,  203. 

evidence  of  superintendence,  204. 

burden  of  proving  employer's  negligence,  205. 

burden  of  proving  due  care  of  employee,  206. 

burden  of  proving  contributory  negligence,  207. 

burden  of  proving  plaintiff's  infancy,  208. 

plaintiff's  belief  that  there  was  no  danger,  209. 

presumption  that  plaintiff's  attorney  has  authority  to  sign. 

and  serve  notice,  210. 
expert  testimony,  211. 
rule  of  railroad  company,  212. 
photograph  of  place  of  accident,  213. 
res  gestce,  214,  215. 
remoteness,  216. 
compromise  offers,  217. 
mortality  tables,  218. 
judicial  notice,  219,  220. 

EXECUTOR  AND  ADMINISTRATOR.    See  ADMINISTRATION. 
when  may  sue  for  employee's  death,  97,  105,  106. 
right  to  sue  for  injury  received  in  another  State,  108,  193. 
foreign  administrator's  right  to  sue,  109,  110. 
when  cannot  sue  for  fatal  injury,  193. 
general  issue  admits  that  plaintiff  who  sues  as  executor  is 

executor,  225. 
also  that  defendant,  when  sued  as  executor,  is  executor,  225. 

FEDERAL  COURTS, 

suits  in,  under  Employers'  Liability  Acts,  16. 
rule  in,  upon  due  care  of  employee,  16. 
adopt  construction  of  state  court,  when,  17. 

when  not,  18,  19. 

when  take  judicial  notice  of  laws  of  other  States,  220. 
FELLOW-SERVANTS, 

defence  of  fellow-servant's  negligence,  abolished  in  certain 
cases  by  statute,  13,  49,  69,  88,  91. 


410  INDEX. 

References  are  to  Sections. 
FELLOW-SERVANTS,  continued. 

defence  remains  in  other  cases,  26,  49. 

federal  courts  not  bound  by  state  decisions  as  to  who  are 
fellow-servants,  19. 

negligence  of  journeyman  painter,  26. 

superintendent  generally  deemed  a  fellow-servant  with  com- 
mon laborer  at  common  law,  49,  50,  51. 

this  rule  changed  by  Employers'  Liability  Acts,  48-51. 

person  in  charge  or  control  may  be  a  fellow-servant,  55. 

otherwise  as  to  railroad  employee,  69-77. 

employees  of  different  employers    are   not   fellow-servants, 
though  engaged  in  a  common  employment,  65. 

general  and  special  servants,  66. 

fellow-servants  liable  to  each  other  for  own  negligence,  68. 

railroad  employees,  69-85. 

common-law  rules  concerning  railroad  employees,  78,  79,  80. 

reputation  for  incompetency,  200. 
Who  are  fellow-servants  under  the  Employers'  Liability  Acts  : 

two  journeymen  painters,  26. 

mason  and  ordinary  workman,  53. 

foreman  and  common  laborer,  53. 

loom-fixer  and  weaver,  55. 

printer  and  back-tenter  on  calico-printing  machine,  92. 
Who  are  not  fellow-servants  under  the  Employers'  Liability 
Acts  : 

superintendent  and  other  employees,  48-51.     See  SUPERIN- 
TENDENT. 

person  entrusted  with  duty  of  seeing  that  ways,  works,  etc., 
are  in  proper  condition,  88-90. 

person  in  charge  or  control  of  certain  railroad  appliances, 
etc.,  69,  75-81. 

person  to  whose  orders  plaintiff  was  bound  to  conform,  91 , 

92. 
FOREIGN  CAR.     See  CAR. 

when  used  by  defendant  for  own  benefit,  43,  44,  164. 

when  not  used  but  merely  forwarded  empty,  45. 

defective  brake  in  foreign  freight-car,  87. 

inspector  of  foreign  cars  is  person  entrusted  with  duty  of 
seeing  that  they  are  in  proper  condition,  88,  164. 


INDEX.  411 

References  are  to  Sections. 
HUSBAND 

cannot  recover  for  wife's  loss  of  services  from  personal  in- 
juries, 141. 

INDEPENDENT  CONTRACTOR, 

employee  of,  may  sue  under  statutes  of  Massachusetts  and 

Colorado,  11,  93. 

illustrations  of  independent  contractor,  12,  93,  94. 
may  be  also  person  entrusted  with  duty  of  seeing  that  ways, 

works,  etc.,  are  in  proper  condition,  94. 
INJURY.     See  ACCIDENT  ;  ACTIONS  ;  DEATH. 
INSPECTION, 

foreign  cars,  88,  164. 
railroad  track,  89. 

INSPECTORS.     See  PERSONS  ENTRUSTED  WITH  DUTY  OF  SEEING 
THAT  WATS,  WORKS,  ETC.,  ARE  IN  PROPER  CONDITION. 

JUDGE.     See  JURY. 

JUDGE  AND  JURY.     See  JURY. 

JUDGMENT, 

by  consent  of  next  friend  of  minor  employee,  15. 

former  judgment  for  defendant  in  suit  by  wrong  plaintiff  no 

bar  to  suit  by  right  plaintiff,  107. 

does  not  change  nature  of  penal  law,  nor  entitle  it  to  enforce- 
ment in  sister  State,  194. 
nonsuit  no  bar  to  new  action,  231. 
JUDICIAL  NOTICE, 

what  will  or  will  not  be  taken  judicial  notice  of,  219,  220. 

mechanism  of  car-brake,  219. 

common  law  of  sister  State,  219. 

statutes  of  sister  States,  219. 

when  federal  courts  will  take  notice  of  laws  of  other  States, 

220. 
JURY  (whether  judge  should  submit  case  to  jury). 

Negligence  of  employer,  or  of  his  responsible  employees : 
chapter  relating  to,  156-169. 
person  in  charge  of  train,  76. 

superintendent's  failure  to  warn  track-repairer  of  approach- 
ing train,  116. 


412  INDEX. 

References  are  to  Sections. 
JURY,  continued. 

conductor's  failure  to  notify  brakeman  of  broken  draw-bar, 
117. 

brakeman's    failure   to   warn    car-inspector   of   approaching 
train,  117. 

slight  evidence  of  negligence  sufficient,  159. 

mere  scintilla  of  negligence  not  sufficient,  159. 

failure  to  discover  defect  in  cartridge-punch,  159. 

failure  to  discover  defect  in  spliced  rope,  159. 

failure  to  discover  defect  in  crown-sheet  of  locomotive,  159. 

automatic  starting  of  machinery,  160. 

inference  against  employer  when  he  introduces  no  evidence, 
161. 

failure  to  discover  defective  coupling-link,  161. 

car-inspector's   failure   to  discover   defect  in   draw-bars  of 
foreign  cars,  164. 

road-master's  failure  to  remedy  defect  in  railroad  track,  164. 

latent  defect  in  brake-rod,  164. 

breaking  of  wooden  lever,  165. 

separating  of  freight  train,  165,  168. 

breaking  of  gudgeon-pin  of  derrick,  165. 

fall  of  stone  upon  plaintiff,  165. 

fall  of  burlaps  from  wagon,  166. 

caving  in  of  trench,  166. 

failure  to  discover  ledge-stone  in  dangerous  position  on  stag- 
ing,  167. 

allowing  beams  to  remain  in  dangerous  position  on  floor,  167. 

failure  to  warn  repairer  of  danger  of  "  blowing  down  "  loco- 
motive, 167. 

starting  train  with  unusual  jerk,  168. 

"  kicking  "  off  car  without  brakeman,  169. 

failure  to  stop  car,  169. 

leaving  switch  open,  169. 
Contributory  negligence  or  due  care  of  employee  : 

boarding  moving  freight-car,  76. 

failure  to  use  eyes  or  ears  while  at  work,  116. 

relying  upon  warning  from  person,  116,  117. 

uncoupling  cars  in  motion,  117,  170,  171. 

inspecting  cars  in  motion,  117. 


INDEX.  413 

References  are  to  Sections. 
JURY,  continued. 

brakeman's  failure  to  look  out  for  overhead  bridge,  118. 

passing  from  car  to  car  by  dangerous  way,  120. 

boarding  train  in  motion,  121. 

coupling  cars,  122. 

crossing  railroad  track,  122. 

giving  wrong  signal,  122. 

Massachusetts  tests  of  due  care,  170. 

shifting  of  oil  tank,  170. 

jumping  off  train  in  motion,  170. 

pile-driving,  170. 

Alabama  rules  and  tests,  171. 

spragging  wheels  of  car  in  motion,  171. 

jumping  off  locomotive  in  motion,  171. 

collision  between  train  and  hand-car,  171. 

failure  to  flag  railroad  curve,  171. 

death  while  discharging  duty,  172,  173. 

fall  from  freight  train  in  motion,  172,  173. 

fall  into  ditch,  172. 

crushed  by  freight-car,  172. 

failure  to  notify  person  in  charge  of  steam-boiler,  172. 

lying  on  railroad  track,  173. 
Assumption  of  risk  and  volenti  nonfit  injuria: 

common-law  rules  respecting  defects  in  ways,  works,  etc.,  not 
changed  by  Employers'  Liability  Acts,  174. 

common-law  rules  respecting  negligence  of  superintendent, 
and  of  person  in  charge  or  control,  abolished  by  Employ- 
ers' Liability  Acts,  174,  188,  190. 

continuance  in  service  with  knowledge  of  the  risk  —  English 
rule,  176,  177,  178. 

same  —  Alabama  rules,  179,  180. 

same  —  Massachusetts  rule,  181. 

defect  in  ways,  etc.,  used  in  department  over  which  plaintiff 
has  no  control,  176,  180. 

fall  of  stone  from  crane,  176. 

kick  by  horse  known  to  be  vicious,  177. 

fall  into  brewery  vat,  177. 

statutory  defects,  doctrine  of  assumption  of  risk  does  not 
apply  to,  178. 


414  INDEX. 

References  are  to  Sections. 
JURY,  continued. 

knowledge  and  appreciation  of  danger,  181,  185. 

falling  off  coal-run  without  guards,  181. 

using  machine  without  guard  to  head-block,  181. 

using  railroad  yard  with  hole  in  planking,  181. 

projecting  awning  at  railroad  station,  182. 

using  high  and  short  railroad  trestle,  182. 

wild  engine  on  curve  of  track,  182. 

ignorance  of  danger  by  plaintiff,  when  no  excuse,  183. 

failure  to  warn  plaintiff  of  increased  danger,  183. 

coupling  cars  having  double  buffers,  183. 

hidden  or  concealed  danger,  183. 

work  outside  of  ordinary  duty,  184. 

due  care  of  plaintiff  does  not  preclude  application  of  doctrine, 
184. 

understanding  and  appreciation  of  danger,  185. 

fall  of  staging  caused  by  overloading,  185. 

fall  of  bank  of  earth,  185. 

caving  in  of  trench,  185. 

young  and  inexperienced  employees,  186. 

minor  employee,  187. 
Miscellaneous  points : 

whether  person  was  in  "  charge  or  control "   of  train,  76, 
77. 

what  evidence  will  justify  a  finding  of  instantaneous  death, 
or  death  without  conscious  suffering,  101. 

general  principles,  156. 

mere  occurrence  of  accident  to  non-employee  at  common  law, 
157. 

defensive  explanation  of  accident,  162. 

jury  not  bound  to  believe  defendant's  explanation  of  acci- 
dent, 162. 

LAW  AND  FACT.     See  JURY. 

when  question  is  one  of  law  for  the  court,  156-190. 
when  question  is  one  of  fact  for  the  jury,  156-190. 
LEGAL  REPRESENTATIVES.      See  EXECUTOR  AND  ADMIN- 
ISTRATOR. 

may  sue  under  Employers'  Liability  Acts,  97. 


INDEX.  415 

References  are  to  Sections. 
LEX  FORI, 

when  governs  limitation  of  actions,  137,  138,  139,  140. 

governs  matters  of  procedure,  199. 

governs  exemplary  damages,  199. 

whether  governs  person  entitled  to  sue,  199. 
LIMITATION  OF  ACTIONS, 

statutory  provisions,  133. 

one  year  in  Massachusetts  and  Alabama,  133. 

two  years  in  Colorado,  133. 

six   months    in    England,  or,   when  injury  is  fatal,  twelve 
months,  133. 

amendment  setting  up  new  cause  of  action,  134,  135. 

what  is  or  is  not  a  new  cause  of  action,  134,  135. 

exceptions  or  saving  clauses  in  general  statute  of  limitations, 
effect  upon  actions  under  Employers'  Liability  Acts,  136. 

conflict  of  laws,  137, 138,  139,  140. 

time  limited  is  of  the  essence  of  the  right,  137,  138. 
LOCOMOTIVE, 

definition,  71. 

charge  or  control  of  locomotive,  79. 

MACHINERY, 

defects  in  the  condition  of,  21. 

statutory  provisions,  36. 

machinery  defined,  38. 

hammer  or  ordinary  hand-tool  not  machinery,  38. 

foreign  car  when  used  by  defendant,  43,  44. 

foreign  car  when  not  used  by  defendant,    but  merely  for- 
warded empty,  45. 
MARRIED  WOMEN, 

right  to  recover  damages  for  personal  injuries,  141. 
MINOR, 

minor  employee  not  bound  by  release  of  damages  by  parent,  9. 

"  relief  fund  "  agreement,  when  binding  on  minor,  10. 

power  of  next  friend  of  minor  to  settle  suit,  15. 

burden  of  proving  minority  of  plaintiff,  208. 
MUNICIPAL  CORPORATIONS, 

actions  against,  by  employees,  14. 

estoppel  against,  14. 


416  INDEX. 

References  are  to  Sections. 
NEGLIGENCE. 

What  is  actionable  negligence  : 

superintendent  allowing  ways,  works,  etc.,  to  remain  in  de- 
fective condition,  57,  58. 

allowing  throttle-valve  to  be  leaky,  57. 

placing  car  on  side  track  dangerously  near  main  track,  57, 
81. 

failure  to  brace  sewer  trench,  58. 

giving  wrong  signal  by  person  in  charge  or  control  of  rail- 
road signal,  81. 

failure  to  slow  up  in  approaching  switch,  81. 

checking  speed  of  hand-car  suddenly  without  warning,  81. 

backing  car  upon  person  engaged  in  coupling  cars,  115. 

superintendent's  failure  to  warn  track-repairer  of  approach- 
ing train,  116. 
What  is  not  actionable  negligence : 

using  carding-machine  with  hole  in  disk  of  wheel,  24. 

journeyman  painter's  failure  to  fasten  end  of  stage,  26. 

omission  to  use  blocking  appliance  on  building  truck,  58. 

failure  to  discover  ledge-stone  on  staging,  58. 

failure  to  stop  train,  115. 

failure  to  warn  car-cleaner  of  approaching  train,  116. 
Miscellaneous  points : 

negligence  of  person  entrusted  with  duty  of  seeing  that  ways; 
works,  etc.,  are  in  proper  condition,  86-90. 

poisoning  by  third  person  concurring  with  negligence  of  per- 
son in  charge  or  control  of  hand-car,  102. 

negligence  of  plaintiff  after  injury  does  not  prevent  recov- 
ery, 154. 

presumption  of   negligence  from  occurrence  of  accident  at 
common  law,  157,  158. 

inference  of  negligence  when  employer  introduces  no  evi- 
dence, 161. 

previous  specific  acts  of  negligence,  202. 

customary  negligence,  203. 

burden  of  proving  negligence,  205. 
NEXT  FRIEND, 

power  of,  to  compromise  suit  for  minor,  15. 


INDEX.  417 

References  are  to  Sections. 
NEXT  OF  KIN, 

when  entitled   to   damages  for  death  of  employee,  97,  99, 

100. 
damages  when  employee  leaves  no  dependent  next  of  kin. 

149. 
NON-RESIDENT, 

entitled  to  benefit  of  Employers'  Liability  Act,  5. 

claim  for  damages  in  causing  death  of  non-resident  as  ground 

for  administration,  103,  104. 
NONSUIT, 

no  bar  to  new  action  on  same  cause,  231. 
whether  motion  to  nonsuit  need  state  particulars,  239. 
NOTICE, 

Employers'  Liability  Acts  of   Massachusetts,  Colorado,  and 

England  require  notice  of  the  time,  place,  and  cause  of 

the  injury  to  be  given  employer,  123. 
acts  of  Alabama  and  Indiana  do  not  require  notice,  123. 
notice  must  be  given  before  suit,  124.  ' 
written  notice  required,  125. 
notice  as  basis  of  claim  for  damages,  127. 
notice  in  case  of  instantaneous  death,  126. 
notice  of  "time"  of  injury,  128. 
notice  of  "  place  "  of  injury,  129. 
notice  of  "  cause  "  of  injury,  130. 
no  intention  to  mislead,  etc.,  131. 
notice  signed  by  employee's  attorney,  132. 
attorney's   authority  to   sign   and   serve   notice   presumed, 

210. 
allegation  of  u  due  notice,"  223. 

PARTIES.     See  EXECUTOR  AND  ADMINISTRATOR  ;  DEPENDENTS  ; 

ACTIONS. 
PENAL  LAWS, 

definition  and  illustrations,  194. 
not  executed  in  other  States,  194. 
judgment  does  not  change  nature  of,  194. 
Employers'  Liability  Acts  not  penal  laws  in  international 
sense,  194. 


418  INDEX. 

References  are  to  Sections. 

PERSONS  ENTRUSTED  WITH  DUTY  OF  SEEING  THAT 
WAYS,  WORKS,  ETC.,  ARE  IN  PROPER  CONDITION. 

car-inspector,  88. 

road-master  of  railroad,  89. 

section  foreman  of  railroad,  89. 

injury  to  such  person  himself,  90. 

independent  contractor  may  be,  94. 
PERSONS    IN   CHARGE    OR   CONTROL.     See  CHABGE  OR 

CONTROL. 

PERSONS  TO  WHOSE  ORDERS  PLAINTIFF  WAS  BOUND 
TO  CONFORM. 

special  order  of  such  person  required  to  fix  liability  in  Ala- 
bama, 91. 

order  of  such  person  may  be  implied  in  England,  92. 

who  are  and  are  not  such  persons,  92. 
PHOTOGRAPH 

of  place  of  accident  as  evidence,  213. 
PLANT, 

horse  may  be  part  of  warehouseman's  plant,  37. 
PLEADING, 

name  of  superintendent  or  other  responsible  person  causing 
injury,  221. 

employer's  knowledge  of  defect,  222. 

"  due  "  notice,  223. 

contributory  negligence  and  waiver  thereof,  224. 

general  issue  admits  capacity  in  which  plaintiff  sues  or  de- 
fendant is  sued,  225. 

joinder  of  statutory  counts,  226. 

joinder  of  statutory  and  common-law  counts,  227. 

joinder  of  separate  causes  in  one  count,  228. 

variance  between  allegation  and  proof,  230. 
PRACTICE, 

election  between  statutory  counts,  226. 

election  between  statutory  and  common-law  counts,  227. 

reporting  case  upon  nonsuit,  229. 

nonsuit  no  bar  to  new  action,  231. 

power  of  Supreme  Court  to  render  such  judgment  as  the  trial 
court  should  have  rendei-ed,  232. 

granting  new  trial  when  verdict  is  against  the  evidence,  233. 


INDEX.  419 

References  are  to  Sections. 
PRACTICE,  continued. 

restricting  new  trial  to  certain  issues,  234. 

trial  court  may  set  aside  verdict  any  number  of  times,  235. 

argument  of  counsel  on  insurance  against  accidents,  236. 

amendment  of  exceptions,  237. 

proving  truth  of  exceptions,  238. 

what  motion  to  nonsuit  or  direct  verdict  need  state,  239. 

meaning  of  "  due  care  "  should  be  explained  to  jury,  240. 

when  trial  judge's  decision  that  witness  is  an  expert  may  be 

revised,  241. 
reasonableness  of  rules  is  a  question  of  law  for  the  court, 

242. 
PUBLIC  POLICY, 

contract  waiving  employer's  liability  is  generally  contrary  to 

public  policy,  6,  7,  8. 
valid  in  England  and  in  Georgia,  6,  8. 
"  relief  fund  "  agreement  of  employee  not  to  sue  employer, 

valid,  10. 
courts   cannot   declare   statute  void   as   contrary  to   public 

policy,  8. 
public  policy  as  ground  of  doctrine  of  assumption  of  risk, 

187. 
when  prevents  enforcement  of  statute  of  sister  State,  193. 

RAILROADS.     See  CAB  ;  CHARGE  OR  CONTROL  ;  TRAIN  ;  "UPON 
A  RAILROAD." 

liability  peculiar  to  railroad  employers,  69-85. 

provisions  of  various  Employers'  Liability  Acts,  69. 

"  train  "  defined,  70. 

not  necessary  that  locomotive  be  attached  to  cars  to  form  a 

train,  70. 

cars  propelled  by  stationary  engine,  70. 
"  locomotive  engine  "  defined,  71. 
movable  steam  crane,  71. 
car  and  hand-car,  72. 
"upon  a  railroad,"  73. 
locomotive  in  round-house  for  repairs,  73. 
defects  in  grab-irons  and  draw-bars  of  freight-cars,  74. 
blocking  of  frogs,  switches,  and  guard-rails,  74. 


420  INDEX. 

References  are  to  Sections. 
EAILROADS,  continued. 

"  charge  or  control "  for  temporary  purpose,  75. 

charge  or  control  of  train,  76,  77. 

common-law  rules  concerning  person  in  charge  or  control  of 

train,  78. 

charge  or  control  of  locomotive,  79. 
charge  or  control  of  car,  80. 
negligence  of  person  in  charge  or  control,  81. 
railroads  operated  by  receivers,  82. 
right  to  sue  railroad  receivers,  83. 
constitutionality  of  statutes  discriminating  against  railroad 

employers,  84,  85. 
RECEIVERS, 

railroads  operated  by  receivers,  82. 
right  to  sue  railroad  receivers,  83. 
RES  GEST^E, 

actions  under  Employers'  Liability  Acts,  214. 
expressions  of  existing  pain,  215. 
RES  IPSA  LOQUITUR, 

mere  occurrence  of  accident  to  non-employees  of  defendant, 

157. 
mere  occurrence  of  accident  to  employees  of  defendant  at 

common  law,  158. 

mere  occurrence  of  accident  to  employees  of  defendant  under 
Employers'  Liability  Acts,  165,  166,  168,  169. 

"SOLE  OR  PRINCIPAL"  DUTY, 

meaning  and  illustrations  of,  54,  55. 
STATUTE.     See  EMPLOYERS'  LIABILITY  ACTS. 
STATUTE  OF  LIMITATIONS.     See  LIMITATION  OF  ACTIONS. 
SUPERINTENDENT, ' 

employer   liable  for  his   superintendent's   negligence  under 

Employers'  Liability  Acts,  48-51. 

employer  generally  not  liable  at  common  law  for  his  super- 
intendent's negligence,  49,  50. 
contrary  rule  in  Ohio,  51. 

who  are  superintendents  within  the   meaning  of  the  stat- 
utes, 52. 
foreman  of  gang  of  workmen,  52. 


INDEX.  421 

References  are  to  sections. 
SUPERINTENDENT,  continued. 

who  are  not  superintendents,  53. 

"  sole  or  principal "  duty,  54. 

charge  or  control  does  not  render  person  a  superintendent, 
55. 

negligence  of  both  employer  and  superintendent,  56. 

negligence  must  be  act  of  superintendence,  59,  60. 

superintendent  doing  woi-k  of  common  laborer,  60. 

instructions  upon  matters  of  detail,  62. 

conflicting  evidence  as  to  whether  one  is  a  superintendent,  63. 

no  defence  that  superintendent  is  a  careful  workman,  64. 

injury  to  superior  officer  through  negligence  of  superintend- 
ent, 67. 

alleging  superintendent's  name  in  declaration,  221. 
What  is  or  is  not  negligence  of  superintendent : 

allowing  throttle-valve  to  be  leaky,  57. 

placing  car  on  side  track  near  main  track,  57. 

leaving  heavy  timbers  upright  unsecured,  57. 

failure  to  brace  sewer  trench,  58. 

allowing  beams  to  remain  in  dangerous  position  on  floor,  59, 
167. 

giving  order  to  hoist  gypsy-fall  when  foul  of  chocking-block, 
59. 

allowing  gypsy-fall  to  be  handled  by  drunken  workman,  59. 

temporary  absence  from  post  of  duty,  61. 

failure  to  warn  track-repairer  of  approaching  train,  116. 

failure  to  use  gang-plank  in  unloading  wagon,  166. 

failure  to  properly  brace  trench,  166. 

failure  to  discover  ledge-stone  in  dangerous  position  on  stag- 
ing, 167. 

failure  to  warn  of  danger,  167. 

TRAIN, 

definition  and  illustrations,  70. 
not  essential  that  locomotive  be  attached  to  cars,  70. 
cars  propelled  by  stationary  engine,  70. 
charge  or  control  of  train,  76,  77. 

common-law  rules  concerning  person  in  charge  or  control  of 
train,  78. 


422  INDEX. 

References  are  to  Sections. 
"UPON  A  RAILROAD," 

definition,  73. 

locomotive  in  round-house  for  repairs  not  "  upon  a  railroad," 
73. 

VARIANCE, 

when  variance  between  allegation  and  proof  is  fatal,  and 

when  not,  230. 

VERDICT.     See  JURY  ;  PKACTICE. 
VOLENTI  NON  FIT  INJURIA.     See  JURY  ;  ASSUMPTION  OF 

RISK. 

definitions  and  illustrations,  175. 
common-law  rules  respecting  defects  in  ways,  works,  etc.,  not 

changed  by  Employers'  Liability  Acts,  174. 
common-law  rules   respecting  negligence  of  superintendent, 

and  of  person  in  charge  or  control,  abolished  by  Employ. 

ers'  Liability  Acts,  174,  188,  190. 
contributory  negligence  is  a  separate  and  different  defence, 

175. 

WAIVER, 

benefit  of  Employers'  Liability  Act  may  be  waived  in  Eng- 
land, 6. 

may  not  be  waived  in  United  States,  6,  7. 
contract  waiving  employer's  common-law  liability  generally 

void  in  United  States,  8. 
valid  in  Georgia,  8. 
WAYS, 

defects  in  the  condition  of,  21. 
statutory  provisions,  36. 
way  need  not  be  marked  out  or  defined,  37. 
must  be  of   permanent  and  not  merely  temporary  charac- 
ter, 39. 

movable  stairs  owned  by  third  person,  42. 
movable  staging  owned  by  defendant,  41. 
railroad  track  of  connecting  road,  46. 
railroad  track  of  shipper,  47. 
WAYS,  WORKS,  MACHINERY,  OR  PLANT, 
statutory  provisions,  36,  86. 


INDEX.  423 

References  are  to  Sections. 
WAYS,  WORKS,  MACHINERY,  OR  PLANT,  continued. 

negligence  of  person  entrusted  with  duty  of  keeping  ways, 

etc.,  in  proper  condition,  86-90. 
common-law  rules  relating  to  such  negligence,  86. 
Definitions  and  illustrations  : 

wires  of  electric  system  of  signals,  37. 

"  exploder  "  used  in  blasting  rock,  37. 

ladder  or  hand-hold  on  freight-car,  37. 

movable  staging  owned  by  defendant,  41. 

movable  stairs  owned  by  third  person,  42. 

foreign  car  used  by  defendant,  43,  44,  88. 

foreign  car  not  used  by  defendant,  but  merely  forwarded 

empty,  45,  88. 

railroad  track  of  connecting  road,  46. 
railroad  track  of  shipper,  47. 
WIFE.     See  MARRIED  WOMEN. 

WORKS, 

defects  in  the  condition  of,  21. 

statutory  provisions,  36,  86. 

must  be  of  permanent  character,  39. 

in  process  of  construction  or  demolition,  40. 

building  contractor  pulling  down  house,  40. 


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